Kerry Perkins -v- West Yorkshire Police

Please Note: An Order under Section 4(2) of the Contempt of Court Act has been applied to the reporting of this case. A copy has been posted in the court precinct and in the press office. Details of the restriction cannot be published, but may be obtained from the county court office. The Order has been sent to the Legal Department of the National Union of Journalists with a view to a challenge.

This court report is arranged in reverse chronological order. Latest post appears at the top. Daily updates, where possible, will be provided at lunch adjournment and after court rises at the end of each sitting day:

Tuesday 3rd December, 2019

HHJ Neil Davey QC has found in favour of West Yorkshire Police. ‘Both causes of action fail and the claim is dismissed’. He set out his reasons in a detailed judgment handed down orally in open court, taking just under an hour.

For the second time in just over two months, I’ve sat in this same court in Bradford and listened to a judge deliver ‘cherry-picked’ findings that appear to be from a different trial to the one I’ve sat through from start to finish. The other was Dr Abdul Rashid -v- WYP and the full report of that trial can be read here. That judgment is presently the subject of a permission appeal to the High Court. Manifest, and admitted, breaches of policy, procedure and, arguably, the law were all overlooked. Most incredibly, the judge accepted the proposition that the misconduct of PC Perkins (as she was then), which received the minor sanction of a written warning.

So, West Yorkshire Police remain at large, as an organisation, to cut a swathe through more or less any piece of legislation, such as PACE; CPIA; DPA; and FOIA, as they frequently do on the watch of this court reporter. Authorised Professional Practice, Code of Ethics and their own internal policies are, also, often treated with scant regard. That is a formidable, but not exclusive list. It does not serve the public interest at all well if the judiciary see, as part of an unspoken public policy, to not only ‘whitewash’ these failings, but lionise those officers at the very heart of such breaches. There may be the noble intention of ‘maintaining public confidence in the police service’ but all it does is, conversely and perversely, undermine confidence in the civil and criminal justice systems.

The bereaved families and survivors of the Hillsborough Disaster, and at least two of the journalists who attended Preston Crown Court for all or much of the proceedings, in the re-trial of ex-Chief Superintendent David Duckenfield, are of much the same mind. Whilst the scale of the Bradford trial involving West Yorkshire Police, and what was in issue, is miniscule in comparison to Hillsborough, the principle is the same: The State protects its own.

No written version of the judgment, either in hard copy or electronic form, was provided to either the police lawyers, Miss Perkins’ legal team or the press. An anachronism that has no place in the present court system and smacks of laziness on the part of a judge, whom, given his fine reputation, really should have done better. Particularly, as hearing this claim is a post-retirement sinecure without the huge caseload that besets sitting circuit judges.

Central to the judge’s findings was the proposition that a ‘major criminal investigation’, involving twenty-one officers, many of senior rank, into Miss Perkins was necessary and proportionate, and that justified the covert surveillance and obtaining over a year’s worth of data from the Automatic Number Plate Recognition (ANPR) system. The suspected offence was claimed to be Misconduct in Public Office, one of the most serious non-violent offences on the statute book with, consequently, a very high evidential threshold. It carries a maximum sentence of life imprisonment. That proposition, and the evidence heard from the various police witnesses on that topic, notably retired inspector John Rogerson, viewed from the press seats at least, was nothing short of preposterous. The judge failed to note that the concept of the Misconduct in Public Office offence never featured in any of the contemporaneous, substantive, extensive, wide-ranging, police correspondence or notes, or in Rogerson’s witness statement filed and served in January, 2019. The first Miss Perkins’ legal team heard of this allegation was during Rogerson’s live witness evidence last week.

Despite this, one might think, catastrophic flaw and a generally unconvincing witness box performance throughout (he was shaking like a leaf for the last twenty minutes of it), Rogerson was accorded star witness status by the judge. Along with Karen Gayles, a retired superintendent who signed the ANPR authorisation. The latter features elsewhere on this website. The scandal outlined there, and Mrs Gayle’s role in it, lay to waste much of what she expounded from the witness box (read more here) and does not assist her reliability, or credibility. However, emboldened by that evidence she gave in Court 5 at Bradford Law Courts she may now emerge from her shell and renew her pursuit of her former colleague, Mabs Hussain, now an assistant chief constable in Greater Manchester Police, with the same rigour as she applied to Miss Perkins – and assist with establishing the truth of what appears to be a very troubling matter.

Permission to appeal the judgment, submitted orally by Sarah Hemingway on behalf of Miss Perkins, on the grounds that policies and guidance were not followed on surveillance, was refused by the judge. Ms Hemingway represented her client with commendable tenacity and, together with counsel for the police, Olivia Checa-Dover, was warmly commended by the judge for the assistance given to the court throughout the proceedings.

Costs in the sum of £1,000 were awarded against Miss Perkins. West Yorkshire Police had filed a costs budget of around £60,000 with the court. The taxpayer meets the shortfall, on top of the estimated internal costs of £100,000 that the investigation, and all that followed, has cost the police.

Kerry Perkins said after the verdict: “As a medically retired police officer with 16 years service, the judge’s one-sided assessment of the my former colleagues’ live evidence and his interpretation of the applicable law, guidance and policy is seriously troubling. The possibility, and funding, of a permission appeal to the High Court in Leeds is presently under consideration. I will not be making any further statement until that process is exhausted’.

Monday 2nd December, 2019

Court is not sitting today.

Operation Lapmoor has been referred to a number of times in these proceedings, in open court. In response to a freedom of information request made publicly, via the What Do They Know website, in September 2018 (read full correspondence here), West Yorkshire Police, after the usual stalling tactics, said they could neither confirm nor deny the existence of this investigation, relying on exemptions at Sections 30(3), Section 31(3) and Section 40(5) under FOIA.

Disclosure of the following information was sought:

1. Name of Gold Commander, or names of Gold Group.

2. Name of Senior Investigating Officer.

3. Dates upon which they were appointed.

4. Date operational codename requested.

5. Date police operation commenced, concluded.

6. Policy book, or log. Sometimes known as Blue or Gold book.

a. Date of first entry

b. Date of final entry

c. Number of actions

7. Number of officers deployed on the operation.

It is now known that there was no Gold Commander; no nationally accredited Senior Investigating Officer appointed; the investigating officer was acting inspector John Rogerson, a neighbourhood police officer; there was no policy book kept where decision makers recorded their actions and the rationales for them; the investigation appeared to commence in April, 2014 and completed with a successful appeal by Kerry Perkins against a misconduct meeting finding in April 2015; it appears that the number of officers deployed is TWENTY-ONE, the eight who gave live evidence plus Detective Superintendent Simon Bottomley, Superintendent Pat Casserley, Chief Inspector Suzanne Akeroyd, Chief Inspector Jim McNeil, Detective Chief Inspector Elizabeth Belton, Inspector Dave Bugg, Inspector Grant Stead, Inspector Ian Croft, Detective Constable Iain Harper, Reviewing officer Sarah Morris. The latter seven all worked in the Professional Standards Department either at HQ or District. Senior Human Resources officers, Helen Parkinson, Jayne Christopher, Judith Walker all appeared to be closely involved with Sergeant Astill and A/Inspector Rogerson in the investigation. In summary, there were ten senior officers involved and eleven of lesser ranks: four superintendents, three chief inspectors and four inspectors. All ranged against a part-time, female, disabled police constable who was also a single mother with two small children.

Part of the police case in defending this claim is that the Lapmoor investigation, into a fellow officer’s horse riding hobby, and dog walking, both admitted by police to be in her own time, was lawful, necessary and proportionate.

To her credit, the acting chief constable at the time, Dionne Collins, also became personally involved after a heartfelt plea from Miss Perkins. But, to be fair, it cannot be said that the chief was involved in the investigation.

It does not go to the evidence, or the determination of the Kerry Perkins claim by the judge, but one might argue that WYP hid behind three FOIA exemptions and a misconceived public interest test to conceal from view yet another of their investigations that didn’t even meet the basic tenets of approved professional practice. Another recent and glaring example was Operation Thatcham (read more here).

Conversely and perversely, a freedom of information request seeking almost exactly the same information was answered in its entirety (read more here).

Again, it does not go to the evidence in this claim, and the incidents occured well after the material times in the claim, but John Rogerson’s brother, David, who works in the same police staion at Havertop, near Normanton, featured in this widely shared scandal (the YouTube clip has received approaching 1 million views). Many officers at Normanton refused to identify David Rogerson, including his brother and a number of PSD officers, prior to an information being laid at Kirklees Magistrates Court for an alleged assault on a member of the public in the police station precincts in full view of the CCTV cameras. The district judge issued a warrant against Rogerson, he was summonsed and a trial date was fixed. The Crown Prosecution Service, under relentless pressure from both the Police Federation and PSD, took over the case two days before the trial and discontinued it on public interest grounds. The private posecution had met the evidential part of the Full Code Test. The full story can be read here.

Friday 29th November, 2019

Having heard all the evidence in the claim, the last live testimony having concluded on Thursday aftenoon, closing submissions were heard by the judge, HHJ Davey QC, from counsel for both parties. Sarah Hemingway representing the Claimant, Kerry Perkins, and Olivia Checa-Dover appeared for the Defendant, West Yorkshire Police. Judgment will be handed down in open court next week.

During the evidence, HHJ Davey will have formed his own view on the credibility of witnesses and the reliability of the facts as presented on behalf of Miss Perkins and the police. Eight serving or retired officers gave evidence for the Defendent and one retired police officer, who was also a Police Federation representative, gave evidence for the Claimant.

Ms Hemingway submits that it remains a fundamental right in this country to go about one’s business free from state surveillance, unless such action can be lawfully justified. Furthermore, one’s personal data must not be unlawfully processed and private information must not be misused. Safeguards protecting such principles must be effective in any democratic society.

The court is being asked to make findings on two issues in this case: (i) whether there has been a breach of the Data Protection Act 1998 in relation to a police investigation into the private life of Miss Perkins, a part-time police officer, following a horse-riding accident in September 2013; and (ii) whether the police misused her private information.

It is noteworthy, submits Ms Hemingway that it has not, at any time, throughout the investigation into her hobby, or since, been asserted by the police that Miss Perkins was horse riding when she should have been at work. This is an activity that was always done in her own time outside of agreed working hours.

It should be noted that further evidence as to the extent of the police investigation into Kerry Perkins has only come to light at trial this week. Firstly, she was not aware that retired inspector, John Rogerson (who gave evidence on Tuesday and Wednesday), had attended at her children’s school, or telephoned the school, to make enquiries about her children. This was understandably upsetting for the Claimant, given her valid concerns about the impact of this investigation on her children. Secondly, the subject matter of the Public Interest Immunity evidence given by two surveillance officers had a considerable impact on her, given that she thought that the police had been absolutely clear, following an number of data requests and conduct complaints, that there had been no other forms of surveillance done on her. Thirdly, the lead surveillance officer’s evidence (heard on Wednesday) that he had entered onto the private land behind her home, in the early hours of 10 June 2014 and in order to identify her vehicles, while she and her two young children were sleeping in the house, without any lawful authority to do so, has caused further upset.

This case, Ms Hemingway went on to say, appears to be ‘exceptional’ in that no officer giving evidence this week has been able to say with any real certainty that they know of any more than one other misconduct investigation that has involved such methods of surveillance on a serving police officer. James Carter (who gave evidence on Wednesday) of the force’s Central Authorities Bureau went so far as to say that there may have been one case every 4 – 5 years, revised to 3 – 4 years, but was unable to give any specifics. The consequence, therefore, of any finding in favour of the Claimant is unlikely to extend beyond the specific facts of this case, given its highly unusual features.

The police have a duty to maintain an efficient and effective police force, consequent to sections 39 and 39A of the Police Act 1996. Ms Hemingway submitted that suspected breaches of the Code of Ethics must be dealt with by way of an investigation, but only to the extent that any formal investigation is lawful and necessary for a legitimate purpose and is not excessive. The investigation in this case was initiated (by Rogerson) due to concerns that Miss Perkins was suspected of horse riding and driving more than she professed to be able to. In relation to horse riding, Miss Perkins never sought to hide the fact that she had got back in the saddle after her accident and rode, occasionally, in her spare time when she felt up to it. She had posted pictures about it on Facebook (a social media wesite), with some of her Facebook friends, quite naturally, being police colleagues. She stabled her horses at the same place as her friend Inspector Lynne Proctor. And when approached by a local community support officer, Ken Short, she openly told him that she was out on her horse. A statement about this was, eventually, taken from PSCO Short in October 2014. 11. Had Miss Perkins been asked by Sgt Astill (now inspector), Detective Sergeant Bainbridge (now chief inspector), Rogerson, or any other officer, she would have told them that she rode her horse. Yet, each police officer, when cross-examined, admitted they had not sought to take make that obvious, and reasonable, enquiry. Indeed, Ms Hemingway recalls, Rogerson contended in his evidence that he would not have even contemplated doing so, as he ‘would have needed to gather as much information as possible as part of the investigation in order to put all the evidence to Miss Perkins and ask questions under caution’. Other witnesses, including Mr Carter, and retired superintendents Simon Whitehead (who gave evidence on Wednesday) and Karen Gayles (who gave evidence on Thursday), operated on the assumption that she must have been asked, but had not given an answer.

It was further submitted by Ms Hemingway, the police’s own Occupational Health Unit provided a medical opinion (by Dr Williams, Force Medical Advisor) that, “When her symptoms allow, there is no medical reason to debar her from pursuing this activity” and went on to advise “In periods when Kerry is subject to a flare-up of back symptoms I anticipate that horse riding would not be advised, nor indeed possible in the event of a flare-up being severe”. However, that simple request for OHU advice was not made by Rogerson until at least five months after the investigation began. Counsel added to this point by saying that, had these simple initial steps been taken at the outset, it would have negated any reason to conduct an investigation for the purpose of establishing whether Ms Perkins was horse riding, where she kept her horses or whether a back injury would necessarily preclude her from horse riding. Miss Perkins accepts, had those enquiries been made and she had refused to answer, then that would, of course, have been a different matter. But it is submitted that the police cannot reasonably justify such an exceptional Professional Standards Department misconduct investigation, as did take place, in the absence of such attempts to obtain information in a less intrusive manner. In relation to driving, Ms Perkins maintains that she had always explained when questioned that she had good days and bad days as a result of flare-ups of her back condition and that made it difficult for her to commit to commuting to Castleford on every duty day. She explained that she could drive on a longer journey if having a good day but would be limited if having a bad day, which she was unable to predict. Ms Perkins disputes that she ever said that she could not drive any distance, which is how it was presented to other officers involved in the investigation by Mr Rogerson. It is submitted that the UPP process was the most appropriate way to deal with any concerns that the police had about Ms Perkins’ return to her regular part time operational role at Castleford. Nonetheless, even if it was necessary to conduct any formal investigation into her driving abilities, any such investigation, which may well have involved checks on the PNC for DVLA and MID information and reference to ANPR must have been conducted in compliance with the DPA and common law. It is submitted that there were significant contraventions in this case.

Such checks about car details and insurance details were done on both vehicles belonging to Miss Perkins as part of the Rogerson investigation, providing basic data required for Operation Lapmoor (under the Covert Activity Policy) and the ANPR data trawl and analysis.

Ms Hemingway says the answers to the three specific questions is, therefore, contingent upon the learned Judge’s finding in relation to the ANPR and surveillance issues.

(1). In respect of ANPR was processing done lawfully? The written authority was not clear and did not in fact, lawfully, authorise the ANPR data collection, unless the court accepts the evidence of John Rogerson that he was conducting a major investigation into Misconduct in Public Office (which carries a maximum sentence of life imprisonment). Mrs Gayles’ evidence was that such a major investigation was never mentioned by Rogerson during the briefing and, given that such a purpose was not mentioned in his witness statement or in any other relevant documentation, it is submitted that it is unlikely that was the stated purpose of the application. The fact that PSD felt urged to make enquiries as to whether ANPR searching can be used in a misconduct investigation indicates that the law was not clear. Moreover, the answer to that question was ‘There is no definitive answer which states ‘yes’ or ‘no’ specifically in relation to using recorded ANPR data in a misconduct investigation’. The local WYP policy provides that ANPR can be used in the investigation of crime. It does not refer to investigations into alleged breaches of the code of ethics, or any non-crime related investigations. The Home Office National ANPR Standards states access to data must be solely law enforcement and investigation purposes. Such investigations to fall within three main categories: Major investigations, serious investigations, priority and volume investigations. Mrs Gayles stated that she considered this case to fall within that third category, which includes ‘non-crime issues such as anti-social behavior, vehicle excise offences, road traffic offences and missing persons’. That document does, however, make reference to investigations into alleged breach of the Code of Ethics. It is the only place in the document, or any other relevant policy, that does so and it is unclear how that fits with the three main categories set out above. Nor does it specify the age of the data to be mined as a result of the authority. The Surveillance Camera Code of Practice covers ANPR data. It is submitted that, contrary to Guiding Principles, the rules were not sufficiently clear on who can gain access and for what purpose, when the national standards were considered in conjunction with the local policy and the applicable authorisation form.

(2) Was the processing of data done for a legitimate aim? John Rogerson stated (repeatedly) that the aim of obtaining the ANPR data was in order in investigate Miss Perkins for a major crime, namely Misconduct in Public Office. That was the box that was ticked on the relevant form and, he says, that was the thrust of the briefing he gave to Mrs Gayles, the authorising officer. Mrs Gayles refutes that a major investigation into Misconduct in Public Office was ever discussed in the briefing. Instead, she proceeded on the basis that the investigation was in order to establish whether there had been discreditable conduct/dishonesty on the part of Miss Perkins. However, she accepted undr cross examination that the authorisation form does not reflect that purpose.

(3) Was processing of the data done adequately, relevantly, not excessively? Even if the police can properly rely on the investigation into alleged breaches of Code of Ethics, there is no indication as to how much data (for example, age of data) can be accessed – that box in the table on the (wrong, out of date) form used by Mrs Gayles was left blank. She stated that as authorising officer it would be open to her to determine the age of data to be collected and she would ensure that the scope of the request was proportionate. She authorized the amount of time requested by Rogerson, that is to say, more than one year. It is submitted that, in the circumstances of this case, it was not proportionate to harvest over a years’ worth of data, in any event, but certainly not dating back to a date prior to the injury that occurred on 1st September, 2013. Principle 3 of the Data Protection Act, which is addressed specifically in the WYP local policy on data protection, advises ‘When police computers are designed, consideration is given to information to be held and any forms to be used in collecting it. So long as you stick to information the computer is designed to hold, it would be difficult to argue it is excessive or not relevant’. It is submitted that the relevant form in this instance did not provide for ANPR data collection of over one year in relation to misconduct investigations because it was not considered in developing the local policy and as such the authorisation was not relevant to the data that was collected. It is further submitted that the data, once collected, was then improperly disclosed as part of a misconduct interview on 6th November. 2014.

OPERATION LAPMOOR/ CAP ‘Reconnaissance’ by Rogerson on 29th April, 2014. Whilst  Rogerson initially stated that he had ‘driven past PC Perkins’ home address’, when questioned it became clear that he had parked outside Ms Perkins’ home to observe for a unspecified amount of time, he had then driven to her children’s school (though could not recall whether he attended the school to make enquiries about her children or had telephoned the school), and he had also driven around the area in an attempt to locate the riding stables. It is submitted that enquiries made at the school were unlawful as it constituted collateral intrusion upon the private lives of her young children.

Surveillance on 10th June 2014:

(1) Was processing done lawfully? Ms Hemingway submits that, in this case, the CAP did not indicate with sufficient clarity the scope and manner of exercise of the discretion conferred on the police to conduct surveillance and to store data pertaining to Miss Perkins’ private life. According to Mr Carter’s evidence, the CAP has since been amended, by the police, in order to make it clear. It is submitted that Mr Whitehead did not understand the policy, in particular the distinction that has been made by the police in that Directed Surveillance should come under the Regulation of Investigatory Powers Act (RIPA) regime. This is not clear in the CAP policy and he, unwittingly, made an authorisation under the CAP for ‘Directed Surveillance’. It is submitted on behalf of the Claimant that the domestic legal framework, outside the RIPA framework, falls back on to the DPA 1998. In the specific circumstances of this case, it was entirely unclear in reference to the policy under what circumstances the police could resort to such covert measures, which do on the face of it appear to engage Directed Surveillance. The CAP is neither legally binding, nor directly publicly accessible. It, therefore, follows that the interference in this case was not in accordance with the law and thus an Article 8 violation. In such circumstances, it also follows that the interference was in breach of the DPA principle of being in accordance with the law. Furthermore, it is submitted that the process of applying for authorisation under the CAP was not even done in compliance with the force’s own procedures. Mr Carter’s evidence was that PSD investigations under CAP are ‘Level 2’, along with major investigations. Such a level of authorisation would require an Authorising Officer to make the decision as to whether to grant authority on an objective basis in a quasi-judicial capacity. However, in this case, for reasons specific to this case, it was decided that District Superintendent Whitehead would authorise the CAP.

(2) Was processing done for a legitimate aim? The ostensible aim of the police, in conducting the Lapmoor operation, was in pursuant to the duty to maintain an effective and efficient police force, which is of course a legitimate aim. Steps taken in that regard, such as the Unsatisfactory Performance Process (UPP), would, no doubt, be justifiable under that stated aim. However, there is evidence in this case that the purpose in setting up Operation Lapmoor went beyond that legitimate aim. The purpose in this case was set out to some extent in the email from Detective Inspector Grant Stead (who did not give evidence) to Stuart Bainbridge (who gave evidence on Wednesday), dated 4th October, 2014. It was suggested that it would be an ideal opportunity for observation training to be utilised, for a successful operation to be used as an example to how to get the message across to the wider force, and to illustrate how PSD assist District with such matters. Such objectives fall outside of the ‘legitimate’ aim and illustrate that the investigation was not motivated solely by a desire to address the specific issues arising in Miss Perkin’s case.

(3) Was processing done adequately, relevantly, not excessively? In any event, Ms Hemingway submits that the nature of the covert surveillance operation was disproportionate in the circumstances. In emails sent to and from John Rogerson on 10/6/14 and 12/6/14 respectively [E:21-22], it is clear that a little research on open source material / google search was sufficient to find the information sought and rendered operation Lapmoor unnecessary. Such a reasonable step to ‘investigate’ such a matter was not done. Such information had been available on open sources, yet instead a decision had been made to obtain a broad ranging authorisation for covert surveillance, involving not insignificant policing hours (including the time it would have taken otherwise busy police staff and a senior officer to consider and draft the appropriate paper work, plan the operation, allocate the resources as well as over 9 hours of police hours in conducting the surveillance on 10/6/14). 42. On any reasonable analysis, it is submitted that such a step was disproportionate and excessive in the circumstances. Information obtained from friends and associates 43. Speaking with friends/ associates at the riding club constituted an interference with Ms Perkins’ Article 8 rights private life. Such steps were excessive and unnecessary given that such information could have been obtained from the outset by simply asking Ms Perkins. Information regarding Ms Perkin’s health and disability 44. This information constituted sensitive personal information under the DPA 1998 and as such had to comply with at least one of the conditions in schedule 3. It is accepted that information relating to Ms Perkins’ health and disability were required in order to make an assessment and assist her back to work, part of which would have included providing a suitable workspace (lumbar support chair and riser desk), albeit that took over a year to source. 45. It is contended that the police were not entitled to medical records from the GP in order to make an assessment in relation to a misconduct investigation. Rather, the reports from OHU and the report from the GP received on 10/11/14, attaching the MRI scan report, was sufficient for the purposes of the misconduct proceedings. 46. Such information in relation to Ms Perkin’s condition however was distributed to an excessive amount of personnel within the police force, in particular during the course of the CAP application. If the learned Judge finds that Operation Lapmoor was unnecessary and / or disproportionate in the circumstances, then it follows that the information relating to Ms Perkins’ health and disability that was distributed by way of emails and reports for the purposes of the investigation was equally unnecessary and disproportionate. What is the extent of the private information obtained and was it misused? 47. Ms Perkins accepts that the information she posted on her facebook page and the information about her competing at a horse-riding event on 22/2/14 do not constitute private information.

MISUSE OF PRIVATE INFORMATION In relation to the questions the judge needs to answer regarding misuse of private information, Ms Hemingway submits that they are: 1) Whether there was a reasonable expectation of privacy? 2) If yes, how should the balance be struck between rights of Miss Perkins and duties of the police? In answering this second question, the judge was invited to take into account the following factors: a) Attributes of Miss Perkins b) Nature of activity c) Place it was happening d) Nature and purpose of intrusion e) Absence of consent f) Effect on Miss Perkins g) Circumstances in which, and purpose for which. info came into hands of the police h) Public interest. The judge was invited to apply the latter test to all categories in the schedule, as agreed between both counsel. In this case, Miss Perkins was horse-riding in her own time, a leisure and sporting activity which can gives rise to a reasonable expectation of privacy, as in the cited authority of Hannover v Germany, wherein Princess Caroline of Monaco brought a claim against the German media that had published photographs of her engaging in leisure activities. On the occasions that Miss Perkins did ride, it was mainly on private farm land near her home. It is accepted that there is no reasonable expectation of activities relating to public events that are likely to be reported in different forms of media. That concluded Ms Hemingway’s submissions

Miss Checa-Dover, on behalf of the police, summarises her client’s position to the effect that the investigation into Miss Perkins was lawful, compliant with the Data Protection Act, 1998 and her reasonable expectation of a right to privacy. The chief constable, through her, also contends that the Claimant’s data was processed lawfully and that the misconduct investigation, into alleged breaches of the Code of Ethics, was lawful, necessary and proportionate in order to maintain public confidence in an efficient and effective police service.

The reader is reminded again that the burden of proof in this claim is for the police to prove the lawfulness and proportionately of their actions.

Thursday 28th November, 2019

First witness was retired sergeant, James Carter, who now works as a civilian in the force’s Central Authorities Bureau. His evidence, under cross-examination by Sarah Hemingway, counsel for Miss Perkins, covered complex and, sometimes, conflicting and confusing areas of law and policy, relating to investigatory powers, directed surveillance and covert policing activity. The court heard that Mr Carter had worked in the Bureau for around 10 years, reporting to an officer called Lynton Patz who manages the bureau, and that he was able to assist with the classification of the seriousness of surveillance between Level 1 (lesser crime) and Level 2 (serious crime and Professional Standards investigations) and the difference between ‘directed surveillance’ and ‘surveillance’, in a policing context, and how both were balanced against data protection and Article 8 Convention rights that lie at the heart of this case. Mr Carter told the court that he had actually filled in the Covert Activity Policy application form relating to the surveillance on Kerry Perkins, the Claimant in this case. The applicant was Inspector John Rogerson from whom the court heard quite extraordinary evidence on Tuesday and Wednesday. He had given Mr Carter a verbal briefing and there were no records of notes or documents that supported the application, the court heard. Mr Patz had reviewed the application form and approved it. Ms Hemingway asked Mr Carter why no written application was made by Rogerson, he stated he was ‘not sure that a written memo, in form of email, wasn’t received from him’. No such document has been disclosed to the Defendant’s legal team. The court also heard that this CAP authorisation is one of only two Mr Carter has dealt with against a police officer in his ten years in the Bureau, whom, to his knowledge of the activities of all the other members of his team, dealt with them once every four or five years. He agreed with Ms Hemingway that such action was ‘exceptional’. It also emerged in evidence that he couldn’t recall a discussion with Rogerson regarding enquiries being made directly of PC Perkins (as she was then) regarding her horse riding. He did recall, however, being told she was ‘unco-operative’ over her medical condition. His own policy, as an experienced police officer and Bureau official, he told Ms Hemingway, was to look for less intrusive means of obtaining data, evidence before authorising a CAP.

Next in the witness box was retired superintendent Karen Gayles, who features prominently elsewhere on this website (read more here). In the light of her evidence to the court that article now assumes higher relevance. The court heard that Mrs Gayles was the officer who authorised Automatic Number Plate Recognition (ANPR) surveillance on PC Perkins and the harvesting and processing of data from that computerised system for at least 12 months across three counties. Under cross-examination it emerged that Mrs Gayles had relied only on a verbal briefing from an officer whom had plainly, on his own evidence heard in this court earlier in the week, become obsessed by criminalising Miss Perkins; used the wrong form for the authorisation; did not accept that such use made the authorisation unlawful; ticked the box for ‘major criminal investigation’ despite maintaining repeatedly it was ‘a misconduct matter’; at first relied on the premise that the justification for the surveillance was volume or urgent crime, later resiled to alleged breach of Code of Ethics (misconduct by another name); this was the only authorisation she ever made for ‘misconduct’ in her career; authorised at least 12 months of surveillance and would have been prepared to authorise it for 5 or 6 years as a means of ‘being fair to Kerry’; did not know that the vehicles to be surveilled were insured for multiple drivers and, therefore, the objective of the surveillance could not possibly be achieved; did not ask if less intrusive means of surveillance were available; claimed reasonable adjustments had been made for PC Perkins regarding her disability; did not retain her day book as she was required to do under force policy; could not recall if there was an entry in that day book relating to the authorisation; made no notes or minutes of the briefing with Rogerson; did not accept that there were no safeguarding processes in place to check the validity of her actions (or inactions); asserted that her motivation for a ‘robust’ approach to the authorisation, and the proving of misconduct, or otherwise, was ‘austerity’; wrongly claimed that PC Perkins was earning £25,000 per annum. Throughout the cross-examination, Mrs Gayles forcefully repeated that the authorisation was ‘necessary and proportionate’, was lawful and complied with policy.

The last witness to give evidence in this claim was the second surveillance officer known to have attended at Miss Perkins’ home on 10th June, 2014. He cannot be named, for legal reasons, and is referred to here as Detective Y. Most of his evidence was heard in camera; the only question raised in public session was whether he knew of a third vehicle that may have attended at her home on that morning. He said he ‘couldn’t remember’.

Testimony from the three West Yorkshire Police witnesses today completed the evidence in this trial and the case for the defence.

It does not go to the determination of the issues in this trial, but of far wider public concern and a troubling feature, almost throughout this hearing, has been what appears, at close quarters, to be the general conduct and selective memory of serving and retired officers giving witness box evidence, on oath. This particularly applies to the two surveillance officers: Why would a police force continue to deploy specialist, expensively trained officers where core competencies have to be obeying lawful orders; good, clear recollection of events; and accurate recording and/or note taking.

It was revealed in court that Detective Y had received a ‘de-brief’ from Detective X about the latter’s evidence (given on Wednesday afternoon) before the former appeared in the witness box (on Thursday afternoon). At the time of the briefing, Detective Y said he did not know he was to give live evidence, although he had filed a witness statement and was on the original list of those officers expected to appear at the hearing.

Wednesday 27th November, 2019

Proceedings resumed at 10.45am with retired detective inspector John Rogerson continuing his evidence after a dramatic afternoon in the witness box yesterday afternoon.

He was questioned by counsel for the Claimant, Sarah Hemingway, on a number of matters relating to his characterisation of the alleged misconduct Kerry Perkins as ‘a major criminal investigation’. He confirmed that he had told the authorising officer, Superintendent Karen Gayles, of his view on the scale and type of the operation, but such an assertion did not appear anywhere in his witness statement. When it was put to him, he denied that he had ‘shoehorned’ this into his evidence yesterday to fit the contemporaneous documentation. He had no answer to the point that a major criminal investigation, according to national policing policy, would require a nationally recognised and PIP Level 3 accredited Senior Investigating Officer (read more here). The judge, HHJ Neil Davey QC, crystallised this point: WYP’s Professional Standards Department had assessed the matter as misconduct, Mr Rogerson thought they (PSD) had got that wrong and it was a major criminal investigation.

He also confirmed to the court that he had no experience, or knowledge, of the ACPO Code of Practice in relation to accessing the Police National Computer for information extracted from the DVLA or the Motor Insurance Database. Or, indeed, had he ever seen West Yorkshire Police’s own policy document relating to this issue. His strong view was that all his actions relating to the covert surveillance of a junior colleague on his team, including the harvesting, storage and processing of ANPR data across three counties and for over a year, were necessary, proportionate and fell within the ambit of a proper policing purpose. Even though it is an agreed fact in that case that the subject vehicles were insured for multiple drivers.

John Rogerson signed off his evidence by asserting, with some force, when questioned by counsel, that an intrusive and far-reaching investigation into their mother, a serving police officer, over whether, or not, she was driving a horsebox or walking her dog, that he classified as a major criminal investigation, would have impact on two young children or breach their Article 8 Human Rights: “I didn’t see that then, and I don’t see it now. Why would an investigation into a parent have an impact on children?”

Evidence was then heard from Detective Chief Inspector Stuart Bainbridge. It was drawn out in cross-examination by Ms Hemingway that a written assurance given by Inspector Grant Stead to Kerry Perkins turned out to be untrue. It concerned a request regarding his independence and impartiality in connection with an investigation into complaints raised by Miss Perkins. Stead assured her that he had no previous involvement in any misconduct matters pertaining to her. He was, it was heard, the PSD officer who managed the covert surveillance on her and communicated with Mr Bainbridge, his immediate subordinate, by email, on this particular point.

The court also heard that Mr Stead had told the surveillance team headed by Mr Bainbridge that there was to be no mobile surveillance. That instruction, the court heard, was ignored and the two operatives under Bainbridge’s command carried out mobile surveillance, for which one of the two operatives, who will be referred to in these reports as Detective Y, was even not trained. The objective was to find the location of the stables where Miss Perkins kept her horse. When asked by Ms Hemingway if the officers investigating her, Sergeant Astill (as he was then) and Inspector Rogerson (from both of whom the court has already heard) could simply have asked her where the stables were, rather than an expensive, resource intensive policing operation, he said: ‘Possibly, yes’. The court heard that the information the police required regarding the stables was obtained by a Google search undertaken shortly after the initial surveillance activity, which was, the court heard, carried out at the wrong time of day and when Miss Perkins was on police duty.  Mr Bainbridge maintained that the surveillance operation against her was necessary and proportionate. He said that Inspector Rogerson, an experienced Professional Standards detective sergeant before he was promoted to neighbourhood inspector, had tried different ways to obtain the information and failed. He did not elaborate on that but it was heard that they did not include asking Miss Perkins, or an internet search. Mr Bainbridge told counsel that he didn’t ask his former PSD colleague where the riding stables information came from when the authority to carry out surveillance was cancelled by a superior officer. The court heard that Mr Bainbridge made no notes pertaining to this surveillance  in his pocket note book, as he is required to do under Police Regulations.

The next witness cannot be named for legal reasons. He is referred to here as Detective X. Part of his evidence was heard in camera. The report on his evidence will be necessarily brief to avoid the possibility of jigsaw identification. Detective X couldn’t explain to Ms Hemingway, when questioned, why mobile surveillance was carried out against specific written orders from Inspector Stead, or why he went at the opposite end of the day to that discussed between senior officers and recommended by Inspector Rogerson. He also couldn’t explain why his surveillance partner was deployed although not trained for what he was asked to do and no notes of the operation were made in his pocket book. He told the court that he did not know that he had been deployed on private land, in a location identified by Inspector Rogerson, for which he did not have authority. He did agree with counsel when asked about the requirement to assess the necessity and proportionality of what he was doing but could not answer when asked about the experience and training of his fellow operative, DC West.

The last witness of the day was retired chief superintendent, Simon Whitehead. The court heard that he was the senior officer who had authorised the Covert Activity Policy (CAP). His career had included a spell in PSD as a chief inspector. When asked by Ms Hemingway if he took CAP authorisations seriously he said, ‘Yes’, but then said he had made no notes of the process in his day book, as required and he had received only a verbal briefing from Inspector Rogerson, whom, the court heard, did not produce a single document in support of his request for authority and, similarly, had no written record of the meeting. Mr Whitehead’s understanding of the central issue was that Miss Perkins couldn’t perform operational policing duties but was horseriding as a hobby. Alleged dishonesty was never raised as an issue with him by Rogerson. However, he described the horseriding as ‘significant allegations (sic)’ that could ‘adversely affect the reputation of West Yorkshire Police’. He told the court that he had considered an authority under the Regulation of Investigatory Powers Act (RIPA) but it was not a criminal investigation, a point clarified by the judge. He also said that he had performed the balancing act over Article 8 rights and proportionate action and the scales came down on the side of intrusive surveillance. This was shortly after he told the court that he would have expected Sergeant Astill to have asked PC Perkins where her stables were. He had not checked that was the case before signing off the CAP authority. Mr Whitehead could not assist with the question of whether CAP was a policy that applied across the wider police service and he wasn’t familiar with the statutory framework. In answer to Ms Whitehead, he told the court that he didn’t recognise the West Yorkshire Police Data Protection policy to which he had been directed in the bundle. He agreed that unlawful processing of data would reflect badly on West Yorkshire Police and harm their reputation.

Tuesday 26th November, 2019

Proceedings under way at 11.20am. The judge allocated a later start than usual to allow counsel from both parties to continue discussions, carried over from yesterday afternoon, aimed at crystallising the status of the data and information still under consideration in this trial. It is worth repeating that this is a ‘liability only’ trial.

On a point of housekeeping, permission was granted by the court for Matthew Stringer, a witness on behalf of the Claimant, Miss Perkins, to rely on his second witness statement, filed at the beginning of November, 2019. His first witness statement was dated 14th December, 2018.

A retired South Yorkshire Police constable, and former Police Federation representative, Mr Stringer is the first witness to give live testimony in this case. Much of his evidence had fallen away as the Regulation of Investigatory Powers Act (RIPA) is no longer in issue in this claim. With regard to the alleged helicopter surveillance, denied by the police, that had troubled Miss Perkins so much, he advanced the view that ‘there was no smoke without fire’. Reference was made by Mr Stringer to known misuse of police aircraft by his SYP colleagues and the judge clarified that he was alluding to the infamous case of flying over people sunbathing in their back garden. Counsel for the Defendant characterised that part of his evidence as reckless and made without access to the full facts. Mr Stringer, in response said his evidence was given with an honest perspective. He also told the court that he had never come across covert surveillance of a fellow officer in all his years as a Fed rep.

That completed the case for the Claimant. The court having adopted her witness statement as her evidence in chief and there being no cross-examination required by the police.

The Defendant opened its case with evidence from a serving West Yorkshire Police inspector, Mike Astill, who was the first witness for the Defendant. He was a sergeant working in the Castleford neighbourhood policing team at the time Kerry Perkins suffered her back injury in February, 2013. He confirmed that she had an unblemished police career. Under questioning from her counsel, it emerged that Mr Astill was her line manager, and one of the driving forces behind disciplinary measures that were instituted whilst she was still under the care of both her own doctor and the police force’s occupational health unit. He agreed with counsel that reasonable adjustments for Miss Perkins’ injury, such as a lumbar support chair and a riser desk were not made for over a year. Asked about an email he had sent to colleagues that opened with ‘Kerry is a problem child and top of my hit list’, he denied that was a signal of his intention to make life difficult for Miss Perkins and remove her from his team. When questioned about why he chose to deliver a formal disciplinary notice at 9.30pm to Miss Perkins’ home, where she lived alone with two young children, he couldn’t explain why he chose that hour to complete the task. Mr Astill also said that ‘it was not his finest hour’ when he wrote derogatory comments about Miss Perkins in an email sent to Chief Inspector McNeill. It also emerged in cross-examination that the core allegation that led to those disciplinary proceedings was the fact that she could ride a horse, but not commute to the police station near Castleford, from her home in South Elmsall, on a daily basis. A secondary allegation was that she had been seen walking her dog. Mr Astill could not explain why that process commenced when it ran counter to the findings of two doctors, one of whom was employed by the police.

The second police witness was retired detective inspector, John Rogerson. He was the neighbourhood inspector at Castleford at the time the dispute arose with Miss Perkins and, it soon became evident, the other driving force behind the proceedings being taken against her and the covert, but seriously intrusive, surveillance that formed part of those actions. Under careful and forensic questioning from Sarah Hemingway, it emerged that Mr Rogerson, absent of the medical facts and none too careful about how he went about it, became obsessive about proving that there was serious wrongdoing attached to the horse riding hobby of one of his junior officers, given that, although on duty, her injury meant she was unable to commit to a significant daily journey to a station remote from her home. He variously claimed that it could amount to gross misconduct, potentially leading to dismissal from the force, or the criminal offence of misconduct in public office that carries a maximum prison sentence of life imprisonment. Conversely, it emerged that a Professional Standards Department reviewing officer questioned whether, in fact the horseriding was an issue at all, but Mr Rogerson ploughed on regardless. When seeking formal authorisation from a senior officer for covert surveillance he ticked the box marked ‘Major Investigation’, normally reserved for murder, attempted murder, manslaughter, infanticide, terrorist activities, kidnapping. Asked by counsel if he maintained that position in the case of Miss Perkins, her back injury and horse riding, Mr Rogerson confirmed that he did. The surveillance that was authorised at his request is now known, from the evidence, to include checks on the school of Miss Perkins’ children; undercover officers stationed at the rear of her house; contact with neighbours and riding school colleagues; aerial photographs of her home; monitoring of her social media accounts and ANPR (automatic number plate recognition) across three counties without time limit. He maintained all this was necessary to ‘build up a picture of her lifestyle’ and was necessary and proportionate to aid the disciplinary proceedings. Mr Rogerson flatly rejected the question by Ms Hemingway that there were much easier ways to obtain the information he was seeking, almost all of via open source.

The court adjourned at 4.50pm with Mr Rogerson’s evidence part heard.

Monday 25th November, 2019

The trial opened today in Bradford Combined Court Centre to decide a civil claim brought by a retired police officer against her former employers, West Yorkshire Police. It is expected to take up seven court sitting days with judgment scheduled to be handed down on Tuesday 3rd December, 2019.

The Claimant, Kerry Perkins, who lives in the Pontefract area and served 16 years with her local force as a police constable, before retiring on medical grounds, claims that the Defendants seriously breached her data protection and privacy rights. The police are resisting the claim.

Miss Perkins is represented in court by Sarah Hemingway of counsel, instructed by John Hagan of DPP Law. WYP are represented by Olivia Checa-Dover of counsel, instructed by Prue Crossland of the force’s Legal Services Department.

The claim will be heard by HHJ Neil Davey QC, who has returned to judicial duty having retired in June, 2019 from full time service on the bench.

In the first instance, this is a trial of breach only. The Claimant seeks damages from the Defendant for personal injury, but matters of causation and quantum will be dealt with seperately, if the judge finds in favour of Miss Perkins on liability.

The claim arises out of an investigation conducted by the police into the private life of Miss Perkins after it came to light that she had resumed horse riding, despite the fact that she was on restricted duties at work as a result of a back injury.

As part of that investigation, West Yorkshire Police collected information about Miss Perkins from various sources, including DVLA and Motor Insurance Database, from the Police National Computer (PNC), social media and by directly contacting her friends and associates at various riding stables and clubs.

The police also authorised Automatic Number Plate Recognition (ANPR) analysis and a Covert Activity Policy (CAP), in order to assess whether she was falsely claiming that she was injured, or unfit for routine policing duties as an operational officer. It was considered by senior officers in the Professional Standards Department that proof of such alleged deceit may amount to discreditable conduct.

In the light of some of the information obtained by the police, misconduct proceedings were initiated and Miss Perkins was eventually issued with a written warning. A minor sanction that decays after 18 months, if there are no other misconduct findings during that period.

Miss Perkins has always maintained that horse riding was not inconsistent with her inability to return to regular duties. This belief was supported by both the Force Medical Advisor and her own doctor.

Miss Perkins disputes the purpose, proportionality and lawfulness, of the methods used by her colleagues to investigate her private life and, thereafter, retain and process her personal data. She initially believed that, as part of the internal investigation, she had been surveilled by police helicopter, and by undercover officers in cars that she had noticed, in suspicious circumstances, near the stables and in other locations close to her home.

The police vehemently deny the use of covert surveillance, admitting only a single episode, on 10th June 2014, and they have produced a number of officer statements to support this position. In light of that, and following the completion of the pre-trial disclosure process, Miss Perkins has withdrawn those elements of her claim, whilst maintaining that she did genuinely believe that such covert activities had taken place and for which she kept detailed event logs with a large number of entries on each.

Eight witnesses, including some very senior serving and retired officers, are due to give live evidence on behalf of the force. The total legal costs of both sides are expected to be in the order of £150,000.

In the course of a brief court day, the court heard submissions from counsel on three preliminary issues:

Permission to amend particulars by the Claimant’s, concerning sensitive personal information pertaining to Miss Perkins, openly accessible on police computer systems, was refused on the ground that the proposed amendment came too late for the police to properly address the issues raised.

Counsel for the police submits that there are concerns over the two witness statements of Matthew Stringer, a former Police Federation representative, who will give evidence on behalf of Miss Perkins: It is now agreed that the Regulation of Investigatory Powers Act does not apply to this claim and, as such, there are ‘unhelpful, irrelevant, inadmissible paragraphs’ in Mr Stringer’s evidence. HHJ Davey took the view that the statements should remain in the bundle and the matters raised by Miss Checa-Dover could be dealt with by way of cross-examination or in closing submissions.

During discussions prior to the commencement of the hearing, counsel for both parties were able to narrow the factual disputes in the claim. It is now agreed that Facebook data obtained from the social media account of Miss Perkins, during the internal investigation, did not constitute a privacy breach.

Counsel for the police told the court that, as such, Miss Perkins may no longer have to give live evidence in these proceedings.

Page last updated: Tuesday 3rd December, 2019 at 1900 hours

Photo Credits: Kerry Perkins

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 2015-2019. 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.

Another Durham debacle as chief constable snubs Manchester Mayor

Much has already been written about the Operation Mackan fiasco, over which the now-retired chief constable of Durham Constabulary, Michael Barton was Gold Commander (read more here).

The central theme has been the sub-optimal, one-eyed investigation carried out by his Silver Commander, civilian investigator Darren Ellis, into complaints raised against the chief constable of Greater Manchester Police, Ian Hopkins. It is alleged that, not for the first time, he responded dishonestly to press criticism.

Durham were asked to investigate by the Mayor of Greater Manchester, Andy Burnham, on his behalf, after a grotesquely failed ‘investigation’ carried out by his deputy, Beverley Hughes.

An appeal by the complainant, to the police watchdog, the Independent Police Complaints Commission, against the outcome, signed off by Hughes, unsurprisingly succeeded. The so-called investigation amounted to nothing more than a single phone call to Hopkins, of which there was no note or record.

The complainant is Peter Jackson, a retired superintendent and now a nationally known police whistle blower, having been the source for a large number of regional and national newspaper stories, over the past two years, plus a regular round of TV appearances. Most recently on ITV Granada Reports where he broke a massive scandal concerning information technology failures at GMP from which, the Police Federation say, lives of police officers and members of the public are at risk.

It was also Jackson who was the source for The Times article at the heart of the complaints.

The Durham investigation outcome, accompanied by a 66 page report, littered with errors, is now also subject to appeal to the IOPC. Its receipt was ackowledged on 2nd August, 2019 and the Casework Manager, who gave his address as the Sale office of the police watchdog, anticipated being in a position to complete his assessment ‘within 15 working days, subject to any senior manager or lawyer input’.

‘Casework Manager’ is a very junior role in the IOPC, often held by inexperienced recruits, with little or no experience in police matters and no investigative experience or qualifications. The watchdog do themselves yet another disservice by not having this appeal, against a highly controversial investigation, analysed and assessed under the direct control of one of their Regional Directors.

It is hard to envisage the handling of a complaint, outside the realm of a death following police contact, that continues to drain confidence in the police complaints system as much as this Jackson, Hopkins, Burnham farrago.

In April 2019, Peter Jackson made a multi-faceted complaint to the Mayor’s office, via his Deputy Director for Policing, Clare Monaghan, regarding the conduct of Darren Ellis. It concerned both his questionable performance and competencies as a detective, and a series of alleged ethical breaches that included disrespect, discourtesy, neglect of duty, partiality and discreditable conduct. Jackson is well placed to assess the merits of a police investigation, particularly how it is framed and progressed, as he was Manchester’s leading murder detective before he retired. He had investigated serious crime for most of his 31-year police career.

The following month Andy Burnham wrote to the Durham chief constable, passing on the Jackson complaints against Ellis to him, as the appropriate authority, to make a decision whether to record them under the Police Reform Act, 2002. Bizarrely, Burnham did not support the whistle blower’s request for the removal of Ellis from the investigation. A decision likely to prove very costly; both in terms of public funds and further damage to his already failing reputation as an elected representative capable of holding a police force to account.

Jackson wrote to Barton, just before he retired in June, to enquire about the status of his complaints. His email was ignored. The Operation Mackan outcome was sent to Burnham a few days later. Jackson describes it as one of the worst he has ever seen, with, he says, a large catalogue of basic investigative errors and a highly partial approach virtually throughout. His appeal to the IOPC reflects those points.

Questions about the recording of the Jackson complaints, raised via the Durham press office in the course of researching this article, also drew a blank. Although separate enquiries to the Professional Standards Department did reveal that Ellis is still employed by the force. The clear inference at this point is that they have not been recorded. Strongly backed up by the fact that there has been no contact at all from Durham PSD to the complainant since the Burnham letter to Barton.

In the light of that information, Peter Jackson wrote to Barton’s successor as chief constable, Jo Farrell, to again enquire whether the complaints have been recorded. He has not even received an acknowledgement.

Even allowing for the apparent absence of ethical and professional standards in Durham Constabulary, cascading down from the top of the force, it is very poor conduct by Ms Farrell towards a retired police officer with an exemplary record across 31 years of service. This echoes dealings I had with her during her stint as deputy to Barton. Her portfolio responsibilities at that time included PSD. Our contact concerned an attempt to establish the directing mind in the response to a freedom of information request in which Durham gratuitously libelled me (read more here)

Members of the public, some with very serious issues indeed, have come forward to complain of the same disdainful culture within Durham. Typified in every way, it must be said, by Darren Ellis, as well as others across the ranks of this “grubby little police force”.

Alarming though it is, the protection of Ellis by Barton, and now, it seems, Farrell, does not just extend to the Jackson complaints. He is also under complaint over the most appalling conduct towards two Irish journalists, Barry McCaffrey and Trevor Birney in an operation codenamed Yurta that resulted in the two reporters being arrested and their properties searched over a TV documentary they filmed, and produced, about the infamous Loughinisland massacre. Barton, described by his own Durham colleagues as “a nutter”, resolutely defended Ellis in a televised broadcast from the Policing Board of Northern Ireland and continued to do so through other media, up to the day of his retirement.

The next step for Jackson is to appeal the non-recording of his complaints by Durham to the IOPC. Very determined that they will be appropriately and proportionately investigated, however long that takes, he is, of course, acutely aware that such an investigation, or local resolution, is unlikely to happen within the Durham force: Chief constables, past and present, are already implicated in a ‘cover-up’ and Darren Ellis, it seems, is still able to exert considerable influence within the very department that would deal with the complaints against him.

Peter Jackson’s merry-go-round predicament is another perfect example of why the police complaints system, and the statutory framework governing it, is in such urgent need of radical overhaul; a re-structure that should find no place for police officers, and forces, investigating themselves.

The seriously flawed IOPC should also be confined to the dustbin of history, alongside its three disgraced incarnations, the Police Complaints Board (1977-1985), the Police Complaints Authority (1985-2004) and the Independent Police Complaints Commission (2004 – 2018). Each one worse than its predecessor, which is, arguably, something only the UK Home Office could achieve.

Page last updated: Monday 12th August, 2019 at 0715 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 2015-2019. 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.

 

Drowning in deceit

On this website rests a significant number of articles that robustly challenge the integrity, ethics and transparency of Julia Mulligan, the Conservative politician who has twice been elected as Police and Crime Commissioner (PCC) for North Yorkshire and the City of York. She has been offered right to reply to all of them. In almost every case the request for comment was ignored. They stand unchallenged.

There are also two exoriating articles written about the appointment of her deputy, Will Naylor, and the deceit and subterfuge surrounding the recruitment process.

Will’s credentials, and career history, regrettably, did not withstand scrutiny at that time – and still don’t. Described to me only last week, by an insider, as ‘chaotic‘, the PCC’s office perenially staggers from crisis to crisis. Neither does the Naylor record on providing a straight answer to a straight question. Those articles, and their imputations of dishonesty, also stand unchallenged (read here and here). He declined to comment on either of them, when approached.

He has, very recently, reverted to type: Deliberately ‘running down the clock’ then providing what, taken at its face, is a calculatingly fallacious response to two straightforward, but important, questions asked by a member of the public: In this particular case, the enquiry came from another experienced freedom of information requester, Edward Williams, whom, like myself, has tasted relatively rare success at the First Tier Tribunal (Information Rights).

A second recent instance, involving Naylor, concerns the refusal to disclose very basic information held by the PCC’s office, in connection with complaints against ex-chief constable, Dave Jones. This is to be the subject of a separate article, which will follow shortly after the publication of this one.

On 26th October, 2018, Mr Williams made a simple, plainly expressed request to the PCC’s office via the What Do They Know website:

He referenced the PCC’s response to a report that had been published two days earlier by the North Yorkshire Police and Crime Panel. Its findings were that a complaint of bullying, made by one of Julia Mulligan’s staff, and supported by three others, had been been upheld. A significant public interest story that was, quite understandably, widely published and broadcast on TV and radio locally, regionally and nationally.

It is trite, therefore, to say that the PCC must know all about the bullying issues raised by four of her own staff. Any pretence to good standing as an elected policing representative, such as remained after exposure of a lengthy series of other failings, had been well and truly trashed by the adverse publicity.

The information request was promptly, and cheerily, acknowledged, by a junior member of the PCC’s staff, three days later.

Alex’s turn of phrase was notably impressive, but rather unfortunate as events unfolded. There was no ‘prompt’ response (as required by section 10 (1) of the Freedom of Information Act), and a coach and horses was driven through the statutory limits (a backstop of 20 working days). At the very latest, disclosure should have been made before 23rd November, 2018.

Indeed, there was a stony silence until Mr Williams prompted the PCC’s office on 10th January, 2019 by requesting an internal review of his unfulfilled information request. This elicited a reply from Holly Earnshaw, the PCC’s complaints caseworker and an officer whom, in my own experience, is always pleasant and helpful, if not a little exasperated at what goes on around her.

Holly does not say whom the ‘relevant person’ is. Or explain why this request, as are all others to North Yorkshire Police and Crime Commissioner, was not being dealt with by the specialist disclosure officers in the Civil Disclosure Unit (CDU), headed up by a police lawyer. It can be plainly inferred that the CDU had not been involved up to this point.

Supported by the fact that at least one freedom of information request, submitted well after the one from Mr Williams, had been finalised on 4th January, 2019. That originated from another journalist, Nigel Ward, very well known to Julia Mulligan (she spent £450,000 on legal fees trying to silence him, and a colleague, Tim Hicks). The Ward request, controversial on any view, was partially successful and dealt with by Liz Fryar in the Civil Disclosure Unit, albeit outside the statutory time limit by a couple of weeks, or so (read here).

There followed a further two weeks of unexplained silence from the PCC’s office. In spite of understandable frustration, Mr Williams cheerily wrote to Harrogate HQ on 25th January, 2019 and gave them five more days to disclose a minimal amount of readily retrievable information he had first requested three months ago. Failing that, he intimated, a report to the Information Commissioner’s Office would be made.

It was Holly Earnshaw who responded again, on the same day. Saying much the same thing as two weeks previously, but still not identifying whom the relevant person, or department, might be that was causing the delay. She did add, however, albeit belatedly, that she appreciated ‘this is a matter that needs to be prioritised‘. 

Ten days later, on 4th February, 2019, Mr Williams finally received his response. It was accompanied by an apologetic note from Will Naylor. There is no explanation offered as to the either the cause of the delay, or why Naylor has finalised a request when he has no apparent knowledge of freedom of information law:

This is the essential contents of the accompanying letter. Which is, strangely, unattributed. If it had been determined by a disclosure officer within the CDU they, invariably, put their name to such finalisation letters, with an invitation to contact them to discuss the decision:

Decision 
I have today decided to disclose the located information to you. 

1) The Office of the Police, Fire and Crime Commissioner for North Yorkshire (OPFCC) hold record of 1 complaint made against the PFCC, by staff, since 2014. 

2) The OPFCC has no record of any compensation being paid to any complainants, and should there ever be compensation paid, that information will appear in the end of year accounts. 

In spite of its brevity, and having taken 101 days to compile, the disclosure contains several grotesque errors:

The reply to Question 1 beggars belief given the information already in the public domain.

Question 2 should have contained an ‘information not held’ Refusal Notice in order to comply with Section 17 of the Freedom of Information Act which, again, supports the proposition that this request was dealt with by a person with very limited knowledge of the relevant statutory framework. As does the superfluous reference to annual accounts which has little, or no, bearing, on disclosure requested by way of the Act.

With regard to Question 1, the BBC, no less, has reported: 

(i) That four members of her staff have complained about PCC Julia Mulligan and their collective complaints of bullying were upheld by an independent panel. 

https://www.bbc.co.uk/news/uk-england-yo…

(ii) That, since the first round of bullying complaints were upheld, two others have surfaced. The panel’s finding on those is expected shortly. 

https://www.bbc.co.uk/news/uk-england-yo…

That makes six complaints, in total, that are already in the public domain. It is impossible to reconcile that number with the proposition that there are records of only one in the PCC’s office, according to Will Naylor. 

This is an extract from the complaint report published by the Police and Crime Panel: “The Panel received a complaint lodged by an individual who, in the interests of ensuring confidentiality, shall be referred to as “AB” for the purposes of this report. AB’s complaint alleged that in the course of their employment with the PCC, AB had been subjected to bullying behaviour by the PCC, which had impacted considerably on AB’s confidence, health and wellbeing. AB also provided supporting statements from three other individuals who similarly alleged that they had been subjected to bullying behaviour by the PCC“.

All the materials comprising the core complaint from AB, and three other members of the PCC staff who also made complaints of bullying by the PCC, in their statements supporting AB, were supplied to Julia Mulligan as part of the assessment undertaken by the Panel. It is inconceivable, to a right thinking person, that data relating to those complaints is not held in her office and properly characterised as complaints.

The Sub-Committee considers that the multiple accounts of staff perceiving themselves to being subjected to frequently irascible and intimidating behaviour by the PCC is sufficient to demonstrate a misuse of power or position and an overbearing approach to supervision of staff.

There is also the issue of the second wave of bullying complaints submitted to the Police and Crime Panel in early November, 2018. Details of Mrs Mulligan’s questionable association with a convicted kidnapper and gangster, and the alleged use of a member of her staff to erase records on Julia’s personal Facebook account, have also surfaced. Is the position of the PCC that she is unaware of those?

It has been suggested to Mr Williams that, in respect of any internal review of the information request that he may contemplate, he puts Will Naylor to proof over the data searches he has undertaken (when, where, how), and to also ask for disclosure of the internal emails within the PCC’s office where his information request is either the subject, or part of, the body text. 

The outcome of such an internal review would, if conducted appropriately by an experienced disclosure officer, or information rights lawyer, be highly revelatory. Developments are keenly awaited in that regard. Particularly, as Julia Mulligan recently made a statement to the same Panel that she was not sighted in freedom of information requests made to her office and played no part in their finalisation. I, for one, find that very hard to believe.

Mrs Mulligan retains her position as Ethics and Integrity Lead at the Association of Police Commissioners and continues to sit on its Board of Directors.

She robustly denies having bullied any of her staff and blames a politically motivated vendetta by those complaining about her. What cannot be denied, however, is that she told a public meeting, in December 2017, that she would “squeeze the pips of the civil disclosure officers harder”. This was in response to stinging criticism of the PCC’s abject performance, ever since she took office, regarding responses to information requests. I was sat less than a metre away from Julia Mulligan when she uttered those words. They were reported to the CDU the following day:

IMG_0262

Surprisingly, none of this collateral evidence found its way into the Police and Crime Panel’s bullying report, despite them being made aware of my email and the prima facie disclosure of that class of conduct . 

Both the PCC, and her Deputy, have been offered right of reply to the entirety of this article. Mrs Mulligan has previously declined to respond to questions regarding the email set out above.

A statement has also been requested from the Head of the Civil Disclosure Unit regarding their apparent exclusion from this freedom of information process.

The requests for comment and a statement did not even receive acknowledgement from Julia Mulligan or Jane Wintermeyer, Head of Legal Services, whose responsibilities include line management of the Civil Disclosure Unit. Will Naylor did respond but has not taken issue with any of the points raised in the article.

Holly Earnshaw was also invited to name the colleague, within the PCC’s office, to whom she passed on the communications from Mr Williams. No acknowledgement has been received to the email sent to her on 12th February, 2018. Indeed, this must have caused considerable discomfort to Will Naylor as access to Holly’s email address has now been blocked.

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All in the interest of ethics and transparency, of course.

 

 

Page last updated on Friday 22nd February, 2019 at 0030hrs

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 2015-2019. 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.

Your Cheque Is In The Post

Back in the day, when internet banking was still a pipe dream, and PPI was being mis-sold on an industrial scale, a cheque book was the essential financial accessory. It that golden era, television and radio comedians cheerily punted the world’s biggest lie as “your cheque is in the post“.

A nod to the unscrupulous businessman, or associate, who made repeated false promises to avoid settling debts.

There was competition for the number one slot, of a rather more crude genre, it must be said, but we will not dwell on that version here.

More recently, it has, arguably, been supplanted by this country’s biggest police force saying when they are going to finalise an information request. A stand-up comedian may not know that, but as an investigative journalist I certainly do.

The Metropolitan Police Service (“the Met”), in those same days that cheque books were ubiquitous, or Scotland Yard, as they were affectionately known, was synonymous with excellence and pride in the job. Renowed the world over.

Sadly, that no longer applies. Control of the streets of London has been given over to feral gangs [1] and the obsession with diversity, and political correctness, has led to almost 1,000 officers being deployed to deal, mostly, with hurt feelings, under the guise of ‘hate crime’ [2]. The force is also constantly beset by corruption and ‘cover-up’ scandals – and widespread negative press comment over multi-million pound, failed, largely pointless, publicity-rich, evidence-light investigations. Operations Elevedon and Midland being two that immediately spring to mind.

Meanwhile, their Freedom of Information Unit, who have a LEGAL [3], and ethical [4], obligation to respond to requests in a timely manner, according to information supplied by a member of that particular team, is starved of resources and coping with a doubled workload. Each disclosure officer is currently dealing with up to 30 requests, rather than the more usual 15.

On 23rd July, 2018 I made a request for information to the Met about a ‘peer review’ they had conducted into the internal affairs department of another police force [5]. It is a matter of significant public interest as there is well grounded suspicion that serious police wrongdoing may be uncovered by my journalistic investigation.

The first response to a request for disclosure, by the Met, was a lie. They said they had NO information about the peer review.

An appeal was submitted as I knew, by reference to other documents held from other sources, that I was being ‘put away’ by the police. A common occurence, regrettably, across the four police forces with which I am regularly involved (the three in Yorkshire and neighbouring Greater Manchester). They deeply resent journalists shining light into their dark corners.

The complaint was upheld by the Met, and within the decision narratrive it was claimed that the lie was ‘a mistake’. Human error. We agreed to disagree. A wise course, as events have unfolded.

Having, eventually, established that the Met DID hold disclosable information pertaining the vexed subject matter, a supplemental request was made shortly afterwards, on 23rd August, 2018.

This second request has produced a further series of lies that seriously undermine confidence in not just the Met, but the wider police service. In the ensuing three months, it has necessitated the involvement of the Independent Office of Police Conduct (IOPC), the National Police Chiefs Council (NPCC) and the Information Commissioner’s Office (ICO).

On 3rd September, 2018 a note was received from Peter Deja, a Support Officer in the Metropolitan Police Service’s Freedom of Information Triage Team, stating the second information request was being treated as an internal review request of the first. Corrected, it must be said, later that day by the same officer. But symptomatic of a mistake-riddled approach through every stage of this process. Right up to the present day.

No quality assurance, no supervision, no pride in the job. A disease that afflicts so much of the visible parts of the police service that is open to journalists (FOI requests, press requests, data subject requests, police complaints, misconduct hearings, civil and criminal court proceedings, to name the most obvious).

The next communication from the Met, on 20th September, 2018, carried a surprise to an experienced FOI practitioner. Now travelling with ‘case reference: 2018090000548’ as its handle, another Information Manager, Suzanne Mason, says the Met are seeking an extension of time for response to the request: “For your information we are considering the following exemption: Section 31 – Law Enforcement. I can now advise you that the amended date for a response is 20th October 2018”.

It drew this reply from me, by way of a complaint submitted to the Met on 25th September, 2018 (paras 1, 2, 3, 8 and 9 are omitted to spare the reader any further tedium, mostly concerning sections 10 and 17 of the Act):

“5. The exemption upon which MPS seeks to rely (section 31) appears to be a continuation of that propensity to deceive. Again, it is reference to the College of Policing’s Guidance that adds force to the point that this exemption is most unlikely to apply in this case: [Police] Forces frequently invite operational counterparts and specialists from neighbouring forces to evaluate their operational performance. Peer reviews support the principle of police interoperability, continuous improvement and information sharing. They do NOT relate to those matters set out in either subsection (1) and (2) of section 31 of the Act, relating to Law Enforcement.

6. It is further noted that the intended reliance on section 31 is completely absent of analysis, insofar as whether subsection(s) 1 and/or 2 may be engaged. It, further, does not analyse which parts of the request to which exemption from disclosure may be sought. On any reasonable, independent view it could not, conceivably, apply to questions 1, 2 and 4 [of the information request].

7. Taking paras 5 and 6 together, the inescapable conclusion is that MPS has taken a decision to engage in further deceit, obfuscation in order to frustrate this request for disclosure. It is also respectfully submitted that this is part of a course of conduct to vex, annoy and harass a journalist in legitimate pursuit of his vocation”.

Strong words. But entirely justified, in all the circumstances.

Tension between requester and public authority is now palpable.

The request is also, by now, attracting considerable attention, and comment, on the Twitter social media platform. The Times, meanwhile, contacted the author of this piece and said they wanted to run the story around my investigation, once complete.

This latest complaint to the Met drew a partial, and largely unsatisfactory, response, via a Mr or Ms S Stroud, on 8th October, 2018:

“For your information, I have made enquiries with the Information Manager (IM) with responsibility for your request.  She is hopeful that a response will be with you SHORTLY [emphasis added].  I have asked the IM to complete your request as a matter of URGENCY [emphasis added].”

“As a response to your request is currently outstanding, I am unable to complete a full internal review in relation to your request.  However, should you be dissatisfied with the MPS response to your request when you receive it, you may request an internal review in relation to that
decision”.

It did go on to say that the Section 31 exemption was still relied upon, despite not answering a single point raised in the complaint which set out, in plain terms, that such an exemption from releasing the information requested has no basis in fact, or law. It was, on all the evidence, a device being used by the Met simply to delay the inevitable disclosure, that is now almost certain, one way or another, to damage senior officer reputations in two very large police forces. This is apparent because of disclosures I have now obtained, after a battle with Greater Manchester Police, who were the subject of the Peer Review conducted by the Met.

A re-appearance is then made by the Met’s Suzanne Mason. On 20th October, 2018 she writes: “Please accept my sincere apologies for the lengthy delay in responding. I am still awaiting a response [she does not identify from whom], but I have sent a chaser and hope to be able to get back to you within the next few days. Thanking you for your patience in the matter”.

No mention is made, by Ms Mason, of the communication from the Met, on 8th October, saying the finalisation of the request, and the accompanying disclosure of the information, was being dealt with ‘urgently‘ and would be finalised ‘shortly‘. Her remark concerning patience was also highly assumptive, and not at all helpful, in the circumstances.

In a further response from the Met on 24th October, 2018, Ms Mason has subsequently ignored the plea to identify those officers – and failed to even address the status of the request. “Within a few days” was plainly more than 4 (it is now 36 and counting). “Urgently” and “Shortly” in Met-speak now extends, astonishingly, to 48 days and counting.

It was now clear that, without the intervention of third parties, the Met has no intention of complying with the law, and thus disclosing the requested information. In the meantime, the lies continue spewing out.

On 26th October, 2018 the matter was reported to the ICO. Apart from an auto-response, that has drawn no reaction, whatsoever, from the toothless ‘watchdog’.

Just four days later, came another lie from the Met. On this occasion, the information manager had, incredibly, redacted her name from the response:

“Enquiries in relation to your request are ongoing and a response will be
provided to you as soon as possible [Emphasis added]. The Information Manager with responsibility for your request will endeavour to provide you with a response on or before 13th November, 2018 [Emphasis added].

“As a response to your request is currently outstanding, I am unable to
complete a full internal review in relation to your request. However,
should you be dissatisfied with the MPS response to your request, you may
request an internal review in relation to the decision.

“I would like to take this opportunity to apologise on behalf of the MPS
for the delay in responding to your Freedom of Information Act request.
The progress of your request will continue to be monitored.”

It matters little in a wider context, apart from yet another small measure of institutional incompetence, but for the second time, and by two different information managers, my surname had been spelt ‘Wilbey‘, not Wilby.

A further complaint was made. Within it, I again asked for the names of the directing minds responsible for delaying the request. The chief suspects being Deputy Assistant Commissioner, Fiona Taylor and Superintendent, Gary Randall. Both officers being at the centre of the investigation of which this request forms part.

A response came from Yvette Taylor, again, on the same day upon which the finalisation was promised, 13th November, 2018. But there was more bad news and Metropolitan Police lies in the system.

“As advised to you in my email dated 30th October, 2018, your complaint with respect to timeliness of responding to you was upheld.

“You have questioned the reasons for the delay in responding to you.

“The delay cannot be attributed to one specific individual.  Unfortunately,
as advised by Ms Mason, the current level of FOIA requests is extremely
high.

“Due to the nature of FOIA requests, it is impossible to regulate the
number of requests that a public authority receives. For example, there
was a 42% increase in FOIA requests for October 2018. A manageable
caseload for a FOIA Information Manger is between 15 and 20 requests.

“Most Information Managers currently have a case load in the region of 30
requests. This is being managed by some Information Managers working
additional hours to clear overdue requests.”

Later the same day, a second communication was received from the Met, this time from Suzanne Mason:

“Please accept my sincere apologies once again for the continued delay in
responding to your request for information.

“I have today received some information which I need to review and seek
approval from the business unit before responding to you and I am hopeful
that we will be able to do so early next week”.

The business unit referred to is, believe it or not, the Met’s Directorate of Professional Standards, for which the aforementioned DAC Fiona Taylor has, I am given to understand, senior command portfolio responsibilty. Supt Randall is also a security-cleared, key member of the special investigations team in that same unit.

No mention is made by Ms Mason of the latest failed deadline, and, of course, ‘early next week’ (19th or 20th November, 2018 one might assume) has been and gone. Another round of deceit, with no explanation, or apology for the missing finalisation of the request.

A new kid on the Met block emerged on 29th November, 2018 when disclosure lawyer, Damion Baird, sent a message to the effect that he had now taken over the file from Ms Mason and the finalisation would be sent ‘shortly’.

Two cordial, informative telephone calls between Mr Baird and Neil Wilby followed in which it was revealed that the lawyer had completed all his work on the request and sent it to the ‘business area’, the Directorate of Professional Standards (DPS), for quality assurance on 30th November, 2018.

Subsequently, he sent a reminder email on 6th December, 2018 and reminded himself that an enforcement notice from the information Commissioner expired on 11th December, 2018. He confidently anticipated a full response to the request before then.

At 6.30pm on 11th December Mr Baird sent an apology and a message saying there would be a further ‘short delay’. But with no date given for a substantive response.

On 13th December, 2018, Mr Baird was asked if the request would be finalised before the Christmas shutdown on 21st December, 2018. He replied saying he believed it would.

It wasn’t – and there was no explanation as to why not.

So, is the world’s biggest lie now the Metropolitan Police Service saying “Your information request is in the post”? Judge for yourself, dear reader.

8th October, 2018       – Shortly, matter dealt with urgency.

20th October, 2018    – Chaser, within a few days

24th October, 2018     – Staff shortages

30th October, 2018     – Response on or before 13th November, 2018

13th November, 2018 – Early next week

29th November, 2018 – Shortly

12th November, 2018 – Short delay

29th November, 2018 – Should be in a position to respond to you shortly

11th December, 2018 – There will be a short delay

13th December, 2018 – It should be completed by [21st December, 2018]

The press office at the Metropolitan Police Service, when first approached for comment on 25th November, 2018 responded:

You seem to have requested a response from our FoI team and have referenced a response which suggests you will have it soon.

The FoI team are very busy, with a wide range of queries, so sometimes you have to wait“.

They later refused to answer the following two specific questions:

1. Why does MPS consider the law (Freedom of Information Act, 2000) does not apply to them. Parliament made no provision, within the Act, for policing bodies to do as they please.

2. Why has MPS consistently engaged itself in deceit over this request at a significant cost to public confidence in the wider police service?

To that was added: It would be highly preferable if DAC Fiona Taylor was apprised and a response provided that was attributable to her. With senior rank, comes ownership of issues.

The enquiries, perfectly reasonably presented, were not drawn to the attention of DAC Taylor, as specifically requested. Or any explanation provided as to why.
Indeed, it has now been learned that Ms Taylor sensationally quit the Met just days before this information request was submitted, in July, 2018. She has now taken a sideways move to troubled Police Scotland.
A fact that any of the Met’s disclosure, legal or press officers has omitted to mention in a significant number of communications.
In the light of this response, the press officer was informed that an approach will be made directly to her. That was done, via the Police Scotland press office, but did not even elicit an acknowledgement.
The press officer email exchange in November was signed off thus: ‘It would be a kindness to describe your response as ‘sub-optimal’. They were approached again for comment on 11th December, 2018 but ignored the request completely.
Page last updated Friday 21st December, 2018 at 2100hrs

 

[1] The Guardian: ‘Streets of Fear’

[2] The Mail on Sunday:  ‘Criminal that Met Police is giving up on burglars’

[3] Freedom of Information Act, 2000: Sections 1, 10 and 17

[4] College of Policing: Authorised Professional Practice

[5] What Do They Know: Information request made by Neil Wilby

Picture credit: The Guardian Media Group

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 2015-2018. 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.

Mystery of the ‘missing’ peer review

An important part of an investigative journalist’s armoury is the Freedom of Information Act, 2000. The essential principle being that public authorities, unless they can provide a good, and lawful, reason not to do so, must disclose information, upon request, by a member of the public. Or, indeed, a reporter chasing down an ‘exclusive’.

‘Public authorities’ includes police forces and policing bodies. With only one or two notable exceptions, the Act is routinely abused by the latter two.

For emphasis that is repeated, in terms: Law enforcement agencies disregard the dictates of Parliament and gang together, under the auspices of the National Police Chiefs Council, no less, to do so.

Unchallenged, it has to be said, by the very MP’s who are the country’s legislators. Or, by Police and Crime Commissioners (PCC’s) who are elected at the ballot box to provide oversight to chief constables. The latter may be connected to the fact that some PCC’s are also serial, and serious, FOI offenders. Aided and abetted by a woefully weak statutory regulator, the Information Commissioner’s Office (ICO) and an even less efficient ‘inn of last resort’, the General Regulatory Chamber, First Tier Tribunal.

In short, policing bodies know, all too well, that there is no easy remedy if they set out to frustrate a journalist in his, or her, quest for disclosure of documents that may underpin a vital public interest exposé, or search for the truth in, for example, the case of a miscarriage of justice.

One glaring, and increasingly high profile example of police forces abusing the Act, is the matter of a ‘peer review’ that was allegedly undertaken by the Metropolitan Police Service (the Met) on behalf of the chief constable of Greater Manchester Police (GMP).

A peer review is a process, guided by the College of Policing, by which police forces frequently invite counterparts, and specialists, from neighbouring constabularies to evaluate their operational performance. Peer reviews, it is said, completely absent of evidence, support the principle of police interoperability, continuous improvement and information sharing.

Management-speak aside, a peer review is also a soft alternative to a robust, thorough investigation of wrongdoing in which ‘bad apples’ in police forces are plucked from the barrel and cast aside.

Shortly after his appointment as chief of the Manchester force, Ian Hopkins, trumpeted loudly about his intention to invite the Met to look into his troubled Professional Standards Board (PSB), which had been dogged by scandal after scandal over the preceding three years, or so. Including, for example, unlawful hacking of phones belonging to members of public; alteration of witness statements; failure to disclose evidence in civil and criminal court proceedings. All very topical, and serious criminal offences, to boot.

He told the Manchester Evening News: “I have asked for a peer review, by another force, to look at how the Professional Standards Branch and Counter Corruption Unit operate – and to see if there is any learning from other parts of the country about the way we operate that maybe we can be doing differently.”

Both departments had been inspected by Her Majesty’s Inspectorate of Constabulary (HMIC) ‘about three times’ in the last few years and concluded they are ‘very good’, the chief added. It is relevant to point out that HMIC is another policing body that abuses the Act and, quite separately, there is considerable doubt, across a much wider spectrum, as to the effectiveness and efficiency of their inspections. The Chief Inspector of Constabulary, Sir Thomas Winsor, is deeply disrespected, and subjected to childish ridicule, by very many serving, and retired, police officers across the country. If the general public was more widely aware of the concerns over the Queen’s representative, there would be a huge outcry.

Hopkins went on to defend the work of the department – feared and loathed by some inside GMP, it is said – and added: “What we are increasingly seeing is that, rather than people accounting for their own actions, they are attacking those people who are told to do that investigation.”

The chief constable pointed to ‘a number of individuals who are disgruntled and have raised issues’. He was, no doubt, referring to such as ex-Superintendent John Buttress, whom, on many independent views, was the subject of what amounted to a crudely executed, disproportionately pursued ‘witch-hunt’ by GMP – and Paul Bailey, the very well-respected former Chair of the National Black Police Association, who was a constant thorn in the side of the command team in GMP.

“We want to make sure, if we get things wrong, or if people have behaved badly, or broken the law, then they are held to account for it,” the chief constable concluded.

Fine words but the reality is very, very different, as anyone close to GMP knows.

So, put shortly, the view advanced by Hopkins was that GMP’s PSB was functioning well, there was not really a problem – and he would ask another police force to carry out a review to prove his point. Which is, in terms, that the issue is confined to disgruntled officers making a lot of white noise.

The peer review, Hopkins said, would last SIX WEEKS. Note that carefully. But, to some, that might have seemed short enough, given the nature and scale of the corruption allegations made against GMP’s troubled PSB.

That was the last public pronouncement made by Hopkins and there has been no visible follow up by the local newspaper, or its crime reporter, John Scheerhout. Whom a number of GMP’s critics perceive to be too close to the force to effectively perform the “social watchdog” role of a journalist. Underpinned, at least in part, by the appearance of a string of stories in The Times and Sunday Times, sourced by the country’s most visible, and effective, police whistleblower, ex-GMP Superintendent Pete Jackson.

This series of front page splashes, and double page spreads, led to a leader being run by the country’s ‘newspaper of record’, in February 2018, calling for a public inquiry into the many high profile failings of Greater Manchester Police. Since then, there has been another two pieces run by The Times, in June 2018, the second of which, effectively, calls out Hopkins for a dishonest response to the first. Times reporter, Fiona Hamilton, pulled no punches as she ripped into the cornered chief constable.

It is a quite extraordinary state of affairs. In both cases the source was, again, Pete Jackson. Manchester’s best detective, and head of the Major Enquiry Team, when he retired from the force.

GMP has also been under constant attack by the BBC, who have produced a number of radio and television programmes featuring alleged wrongdoing by the force. Inside Out producer, Neil Morrow, is a strong, articulate, well-reasoned critic of the running of the force, particularly on social media. ITV’s award-winning presenter, Matt O’Donoghue, is another. Having worked at close quarters with the bereaved families of Jordon Begley and Anthony Grainger, Matt knows a great deal more than most about the inner workings, and ‘cover-up’ mentality, of GMP.

A piece highlighting the shenanigans over this peer review was due to appear in Private Eye on Wednesday 7th November, 2018. That has been written by another highly respected journalist, presenter and producer, Mark Gregory. It may yet appear, of course. Even in a modified form, once the final piece of police disclosure fits into this increasingly complex jigsaw.

Returning to the peer review, the significance of which will unfold, there has been a good deal of activity via freedom of information requests: The first on this topic was made in August, 2016 by William Crow. The response was “GMP can confirm that a peer review was undertaken by the MPS and the report is currently being drafted by them, with the lead being Supt Gary Randall.  The report will include the terms of reference and findings, and will be presented to GMP when completed”. It was supplemented, following a complaint, by this explanation: “Apologies – I did not think we held this information. It has now been confirmed to me that the review took place on the 9th-10th May 2016”.

That disclosure was important. It revealed, taken at its face, that a six week review had taken just TWO DAYS. But as will become clear, the disclosure officer’s addendum will assume much greater significance “I did not think we held this information

A second request on this topic to GMP, made by the author of this piece, in August, 2016, and not finalised until the end of November, 2016 ran counter to that first request. A list of outside police force investigations, and peer reviews, belatedly provided by GMP in its response, did NOT include the Met peer review requested by chief constable Hopkins. It disclosed just two investigations: one each by Kent and Durham constabularies. The former almost certain to be the inquiry into corruption allegations made by John Buttress. That stated absence of data held, concerning the ill-starred Metropolitan Police peer review, also assumes importance as this story unfolds.

A similar request was made, simultaneously, to the three Yorkshire police forces, concerning outside force investigations, all of which can be characterised as troubled and time consuming. Including the perennially hopeless North Yorkshire Police being forced, by formal notice, to respond by the ICO, and, as such, amidst this maelstrom, the significance of the GMP misrepresentation was, regrettably, overlooked.

In June 2017, Mr Crow returned to the fray and the matter of the peer review was raised again via a FOI request. The GMP output was helpful to a degree, and disclosed that Supt Randall was part of a team of four; the GMP officers said to be involved were Head of PSB, Chief Superintendent Annette Anderson, Randall’s direct contact, and Deputy Chief Constable Ian Pilling. The terms of reference for the review had been drafted by the Met, and were part of the final report. GMP concluded by saying that “there is no intended date for publication of this document”. Which, may yet, prove to be a particularly clever choice of words.

At this point, there is still no intervention by the local newspaper, almost two years after their front page splash. Which now looked, increasingly, like a hollow GMP public relations exercise, in which Hopkins had tossed the local ‘social watchdogs’ (as journalists are sometimes dubbed) a tasty bone to keep them quiet.

After the furore over the Hopkins ‘lie’ about the first of the two The Times articles in June, 2018 it was decided, by the author of this piece and Pete Jackson, to re-visit the matter of the Hopkins/Met peer review. The lack of output by the force, and the local newspaper, was suspicious – and a quick assessment of the information available, via both open source and other documents sourced by each of the two, warranted a more in-depth investigation. This was to be assisted by drawing on the knowledge of a network of police and journalist sources – and another two FOI requests. One to the Met (in the event, it actually became two) and one to GMP.

The peer review ‘net’ was closing on Hopkins and GMP. It was not realised at the time that some big Metropolitan Police ‘fish’ might became snared, too.

The first request was made to the Met on 23rd July, 2018 and the second to GMP on 29th August, 2018. The latter is much the simpler to report upon: GMP have ignored the request completely. No acknowledgement, no finalisation, no explanation, no apology. NOTHING. The Independent Office for Police Conduct has, effectively, forced GMP to record a conduct complaint against their head of the information disclosure unit – and the ICO will shortly be issuing an enforcement notice compelling GMP to answer the request.

The inference being, of course, that to respond to the request is almost certain to disclose wrongdoing by very senior officers within GMP. Notably, the two Ians, Hopkins and Pilling.

This is the request in full:

“Dear Greater Manchester Police (GMP),

Please disclose, by way of the Freedom of Information Act, the following information:

1. Date of hot debrief given by Supt Gary Randall of Metropolitan Police (Met) and copies of notes taken at that meeting and/or reports made afterwards.

2. Pocket note book, or day book, entries of GMP officers present at debrief that relate to their attendance at/participation in the debrief.

3. Copy of Peer Review Terms of Reference (ToR) agreed between DCC Ian Pilling and DAC Fiona Taylor, together with email and/or letter correspondence between those two officers pertaining to the Peer Review ToR’s.

4. Copy of Peer Review report delivered by Met to GMP. If it is intended to rely on any exemptions under the Act then I request that the following information is disclosed pending appeal against such exemption(s).
a. Date of report
b. Date received by GMP
c. Copy of Met’s covering letter that accompanied the report.
d. Number of pages that comprise the report, excluding any annex, appendices.

5. Copy of any post-Peer Review report correspondence between DCC Pilling and/or DAC Taylor and Supt Randall.

Yours faithfully,

Neil Wilby
Investigative journalist”

The reader is invited to draw their own conclusions of the efficacy of that request and the likelihood of the dire consequences in responding.

The responses to information request to the Met, and its subsequent follow-up request, have also been, on any view, disappointing and frustrating. A sorry tale of deceit and subterfuge that exposes the country’s largest police force, once revered as ‘Scotland Yard‘, as a dishonest, incompetent shambles who will, it seems, go to any lengths, and put, often unsuspecting, junior officers in the firing line to avoid the exposure of senior officer misconduct.

This is the full text of the first request:

“Dear Metropolitan Police Service (MPS),

In November, 2015 there was widespread press, and broadcast, publicity concerning an announcement by the chief constable of GMP that he had invited the Metropolitan Police Service (MPS) to conduct a review of the operations of his PSB.

https://www.manchestereveningnews.co.uk/…

In this regard, please provide the following information:

1. Date the Peer Review commenced.

2. The name(s)/rank(s) of the Gold Commander or Gold Command Group.

3. Date the Peer Review ended.

4. Date the Peer Review report was delivered to the GMP chief constable.

5. The operational name given to the Peer Review.

Yours faithfully,

Neil Wilby
Investigative journalist”

The sharp-eyed will spot that the answers to questions 1 and 3 were already available as open source material. But they were asked again as a ‘test’ of the veracity of the police responses. It was allocated a Met Freedom of Information Request Reference Number of 2018070000913. The response from the Met was suspiciously speedy and an Information Manager, Ian Burgess, said they did NOT hold ANY information about the GMP Peer Review at all. NOTHING.

At the time, that was viewed, understandably, as an outrageous lie and challenged accordingly. After all, GMP had provided responses ‘to the world’ (as all FOI responses are) that confirmed the existence of the peer review; named the investigating officer, the size of his team and the date it had taken place. But, as already discovered, all is not as it seems with this peer review. Nevertheless, the willingness of the police to lie about it is deeply troubling.

After receiving the complaint, the Met upheld it, changed their position and disclosed that information about the peer review is, in fact, held. Or, so they say.

The name of the person dealing with the complaint was, quite extraordinarly, redacted from the response. However, the Met now aligned themselves with earlier GMP responses and said that the peer review took place on 9th/10th May, 2016. There was no Gold Commander (or Gold Group) nominated and, it follows, no operational codename given to the investigation. The peer review report, or outcome, or both, was delivered to GMP on 22nd December, 2016, they said.

The officer who dealt with the internal review was Yvette Taylor, another Information Manager. Not, in any way, independent from the officer finalising the request, which places the Met in breach of the College of Policing’s Authorised Professional Practice and the same organisation’s Code of Ethics. Ms Taylor mis-spelled the name of the requester and, apart from that fundamental error, her response can be safely characterised as overly bullish; saying it was all just a mistake and denying that the Met had lied about not having any information about the peer review. On any independent review of the two responses, it would be hard to conclude otherwise. The first says one thing, the second says the complete opposite.

Having eked out of the Met that information was admitted as held, the second, ‘killer’, information request was made on 23rd August, 2018:

“Dear Metropolitan Police Service (MPS),

Having now established that disclosable information concerning the Greater Manchester Police (GMP) Peer Review is held by MPS DPS, may I please make a further request? I accept and understand that this second request will carry a different reference number and may attract exemptions, redactions under the Act. However, given the nature of the materials requested to be disclosed, and my experience as an information rights practitioner dealing almost exclusively with policing bodies, it is anticipated that the effects of such exemptions would be very limited indeed.

1. a. Copy of all email and letter correspondence between DAC Fiona Taylor and DCC Ian Pilling where the communication contains reference to the Peer Review.
b. Copy of all email and letter correspondence between Supt Gary Randall and any GMP officer where the communication contains reference to the Peer Review.

NB: In response to journalistic enquiries made of GMP’s press office, it has been confirmed that DAC Taylor and DCC Pilling were the two senior officers whom, between them, agreed the Terms of Reference for the Peer Review. In a previous FOI request finalisation on the WhatDoTheyKnow website, GMP disclosed that Supt Randall was the officer who carried out the Peer Review.

2. Copy of Terms of Reference

3. Copy of Final Report delivered by MPS to GMP on 22nd December, 2016.

4. Copy of any response(s) received by MPS from GMP after the delivery of the Peer Review.

5. Copy of amended Peer Review, if any such amendments were made.

Yours faithfully,

Neil Wilby
Investigative journalist”

The drafting of the information request was greatly aided by the response to a query put to the GMP press office immediately prior to submission of the FOI request. That had informed that Deputy Assistant Commissioner Fiona Taylor was the Met officer who set the terms of reference for the peer review, and had corresponded with Ian Pilling in so doing.

The FOI request is tightly drawn and involves, one might believe, information readily retreivable and disclosable. A report concerning a peer review that lasted just two days, which may have included travel to London and back, and, they say, a ‘hot debrief’, cannot amount to a great deal in terms of either content, or substance.

A well-informed police source has posited that the hot debrief might well have been an Oldham Road curry, and a few pints of lager, to send the Londoners on their way. It has also been hypothesised, on a more serious note, that if there was a hot debrief then it is likely that there was no intention by the Met to put anything to paper, subsequently.

GMP are a force, as seen in the recent ‘body parts’ scandal, acutely aware of the dangers of holding documents that could be disclosed under freedom of information law. They are prepared to burn them, it seems, rather than damage reputations of senior officers.

But a two day jaunt up to Manchester, a bit of ‘lessons learned’ patter, a jolly on the second night, and there you go: Job done. Peer reviewed. No paper trail, if awkward questions asked later by prying journalists.

Since the 23rd August, 2018 FOI submission, the Met has made a variety of excuses that, like the parallel GMP request, has necessitated the involvement of the IOPC and the ICO. A separate article on this website, ‘Your cheque is in the post‘ covers, in detail, the chronology and full extent of the deceit engaged in, by the Metropolitan Police, to avoid disclosure of the requested peer review information (read here).

Tension between requester and public authority is now palpable. The request is also, by now, attracting considerable attention, and comment, on the Twitter social media platform. The Times, meanwhile, contacted the author of this piece, and Pete Jackson, and said they wanted to run the story. But still no interest from the supine Manchester Evening News.

It is now clear that, without the intervention of third parties, the Met has no intention of complying with the law, and thus disclosing the requested information. On 26th October, 2018 the matter was reported to the ICO. Apart from an auto-response, that has drawn no reaction, whatsoever, from the toothless ‘watchdog’.

So, at the date this article is first published, on Sunday 11th November, 2018,  and as the nation stands silent to honour our fallen, particularly those in the Great War that ended one hundred years ago, so too does the Metropolitan Police and Greater Manchester Police. Over disclosure of the materials that will reveal one of three things:

1. The peer review never took place at all. Previous responses by GMP to requests about it were deliberately false and, correspondingly, the first response by the Met was, in fact, correct: They did not hold any information about the peer review, as stated in their information request finalisation on 8th August, 2018. It should also be noted that GMP in one of their first finalisations also said they didn’t hold any information. The request finalised in November, 2016 also made no mention of a peer review supposedly undertaken by the Met five months earlier.

2. The peer review did take place, but was a complete sham. A six week investigation, promised very loudly by chief constable Hopkins, was cut down to just two days. It is said to have taken place in May 2016. Six months after the ‘all guns blazing’ press announcement. The report of that review then took over SEVEN months to deliver from the Met to GMP. It can amount to very little, or nothing. Apart from the usual, all pals at the Palais, police investigating themselves, ‘whitewash’.

3. The peer review did take place, but there was never any intention to produce a closing report. The hot debrief was all that was planned, and then executed on the second of the two days that the Met were said to be carrying out the review. Supt Randall may also never have left his New Scotland Yard office. It may have been a systems review that was conducted electronically, with a debrief via video conference. A tick-in-a-box exercise that is a long, long way short of what GMP’s chief splashed on the front page of the local evening newspaper in November, 2015.

Manchester’s finest have already said they have no intention of publishing the report, yet GMP’s PSB is now engulfed in far worse scandals than they were in 2015. The Metropolitan Police, and almost certainly by now, the National Police Chiefs Council, are very likely colluding with GMP as to how reputational damage can now be limited, and the jobs of Ian Hopkins, and potentially, Ian Pilling can be saved.

If the peer review didn’t take place at Manchester HQ, and a large number of police sources cannot find a single GMP officer that can say that it did, then the only feasible redress is resignation by at least one of the big two chief officers, plus at least one senior Met officer who has taken part with GMP in the charade over the past three months. The list of suspects is small.

If the peer review did take place, then it could still prove the straw that breaks the proverbial back of Hopkins. His standing as a public figure, and, more crucially, as a warranted police officer, has been seriously undermined by the series of stories in The Times. He stands accused of lying about the infamous Operation Poppy investigations. In the circumstances outlined in this piece, he would have conned the public of Greater Manchester over another promised investigation. Whilst all the time the dire situation in PSD – whatever spin he might try to put on it – just goes from very bad to even worse. The chief constable’s position would, on any view outside of the police service, be untenable. Within his own force, and on the fringes, the private view of a significant number officers, past and present, is that he does not have the requisite competencies, and unimpeachable integrity, to lead the Manchester police. The peer review debacle very much underscores that view.

But the real losers in this sorry saga are the taxpaying public, whose confidence in the country’s two largest police forces is certain to receive another knock and their belief in MP’s, and other elected officials, such as the Mayors of both Manchester and London, further undermined as they all stand idly by whilst Acts of Parliament are ransacked by those they are paid to hold to account.

This is a story that, quite obviously, has still some way to run.

 

Page last updated on Monday 26th November, 2018 at 0650hrs

Picture credit: The Guardian Media Group

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 2015-2018. 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.

 

 

Information rights ‘watchdog’ vexed by recent Tribunal findings

However, very recently the tide may well have turned back in favour of requesters, and the information rights ‘watchdog’ put back on its leash.
Two First Tier Tribunal appeals, decided within two months of one another, both resulted in ICO Decision Notices, upholding section 14 exemptions, being overturned (the legal terminology is ‘disturbed’).
The first, Paul Arnold -v- ICO and Department of Business and Energy (EA/2018/0061) was heard before Judge Stephen Cragg QC [1] and two lay panel members in July 2018.
The second, Roger Good -v- ICO and Sedgemoor District Council (EA/2017/0228) was heard before Judge Brian Kennedy QC [2] and, by a quirk of fate, the same two lay panel members as heard the Arnold appeal.
In the Arnold appeal the key parts of the judgment are set out here:
[22] In this case we are of the view that the Commissioner has wrongly labelled the Appellant’s request of 22 June 2016 as vexatious. We should say first of all that it may well be that the Appellant has been overly persistent over the years, that it may well be that continuing to try to persuade the Department to take action is now futile, and it is certainly the case that there have been occasions when the Appellant has used aggressive and abusive language to which officials should not be subjected.
[23] Additionally, we accept that it is right to look at the current request in the context of the almost 20 years of correspondence and contact (including a number of FOIA requests) which the Appellant has generated.
[24] But we do remind ourselves that we have to take all the circumstances surrounding the request into account, and that having done so we have to find that it is the request (and not the requester) that is vexatious.
[27] We should emphasise that our decision is based on the particular nature and circumstances of this request. Our decision does not mean that the Department would be necessarily be unsuccessful in relying on s14 FOIA if further requests are made by the Appellant in pursuing the issues which are important to him. As the case-law set out above demonstrates, the decision on each FOIA request has to take all the circumstances in relation to that particular request into account, when considering whether it is vexatious.
In the Good appeal these are identified as the key passages in Judge Kennedy’s findings:

[27] The Tribunal was provided with correspondence sent to the Commissioner, in which the Council laid out it’s reasoning as to why it considered the request to be vexatious. In it the Council confirmed that it had not sought clarification about the scope of the request, nor conducted any investigations into whether it was a repeat request. It explained that the Appellant had previously been warned that further requests for information would be considered vexatious, and the request itself appeared to be a ‘fishing’ expedition designed to damage the Council.

[28] A letter from the public authority dated 7 July 2017 was effectively a pre-warning that any further request would be regarded as vexatious and pre-empted the necessary assessment of the request.

[29] The Tribunal notes that there was no attempt by the Council to establish whether this was actually a repeat request. Page 96 of the Bundle before us demonstrates there was no reasoning to establish this is a repeat request. In fact, on the evidence before us, the Tribunal believes that the subject request is a fresh request.

[30] We do not concur with the Commissioner’s assertion that this request has no value. In fact we find it is a request that has value and on a specific subject which, on the evidence before us, has not been the subject of a previous request.

[31] The Tribunal accepts the request has value because the subject is correspondence relating to a specific planning application. We have heard the Appellants personally explain the detail and we are persuaded there is value to this request. He refers to information provided by the LGO to the Appellant at page 581 of the Bundle before us, which appears to reveal that specific instructions to delay the process of investigating the breach of planning control leading ultimately to the grant of permission were given by a planning officer at the Council. It appears this information was not supplied by LGO with the letter that is at page 130 of the Bundle before us. The Council did not provide it to the Appellant. It may provide information that would support a complaint, justify litigation or even end the need for further requests from the Appellant, or others in the circumstances of this subject matter.

[32] It is in the public interest that any possible fault on the part of the public authority in dealing with this planning issue is fully explored. Even though the decision in Dransfield suggests that an authority does not need to consider every part of a request in certain circumstances, we find that this case is not such as would fall into that category. On the evidence before us we do not accept that the request was “manifestly unreasonable”.

It should be noted that First Tier Tribunal judgments are not binding authorities, but the fact that, in these particular cases, the two judges were widely experienced, very highly rated QC’s will, no doubt, raise eyebrows at the ICO, and in public authorities up and down the country.

Journalists, seen as very much ‘the enemy‘ in my own specialist field of challenging policing bodies, can also take heart from these judgments – and live in hope that a more balanced view will be taken by the watchdog when assessing complaints against public authorities that have simply resorted to a ‘vexatious‘ label as a means to avoid deeper scrutiny of malpractice and wasteful use of public funds.

The only public body to label me ‘vexatious‘ – the joint Civil Disclosure Unit of North Yorkshire Police and its Police Commissioner – face me at a Tribunal hearing early next next year. On advice from my barrister, I was quietly confident of overturning the ICO’s Decision Notice before these latest Tribunal findings. Now that confidence has grown further.

I defeated the same Civil Disclosure Unit at a Tribunal hearing in September, 2017 (EA/2017/0076). But that concerned a section 40 exemption, not section 14. Heard before David Farrer QC and two lay panel members at Barnsley Magistrates Court, Elizabeth Kelsey of counsel represented the ICO and Alex Ustych appeared for the North Yorkshire Police Commissioner (NYPCC).

I have also succeeded against NYPCC in a county court claim over data protection breaches.

Page last updated Wednesday 24th September, 2018 at 2120hrs

[1] Stephen Cragg QC. Doughty Street Chambers bio: https://www.doughtystreet.co.uk/barristers/profile/stephen-cragg-qc

[2] Brian Kennedy QC. 4 KBW Chambers bio: http://www.4kbw.co.uk/members/brian-kennedy-qc/

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 2015-2018. 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 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.

imgid65571362-jpg-gallery

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