Cover-up at all costs

There are many thousands of words written elsewhere on this website about the so-called ‘police watchdog’ in England and Wales, most recently here. Currently known as the Independent Office for Police Conduct (IOPC), having previously existed as the Independent Police Complaints Commission (2004-2018), the Police Complaints Authority (1985-2004) and the Police Complaints Board (1977-1985). Each of those ‘brands’ becoming more toxic than their predecessor (read more here).

The latest incarnation, the IOPC, is already regarded by those involved closely with the police complaints system as even worse than the thoroughly disgraced IPCC. Despite the high hurdle that undoubtedly presented, with its legacy of gratuitous self-congratulation, poor leadership, interminable delays, flawed decision making, and the inevitable partisan outcomes of ‘investigations’ carried out too frequently by inexperienced, under-qualified ‘casework managers’ or ‘lead investigators’ who had completed a six-week remote learning course to earn their badge.

Matters now made much worse by the controversial appointment of an inexperienced, under-qualified (in the police complaints arena) chief executive, Michael Lockwood, with, it appears, an unhealthy appetite for dining at the same table as those he is charged with holding to account. Most notably, his unctious currying of favour with the Police Federation of England and Wales, blowing an ill wind for those making complaints against the Fed’s members. Who just happen to account for over 80% of all warranted police officers.

Knowing whom the Home Office passed over for the job simply makes that situation almost unbearable. A no-nonsense, high-achieving criminal justice practioner with a proven track record of leadership and putting right great wrongs. Made to measure for an organisation so badly in need of a change in culture and the elimination of so many questionable practices.

It is a matter for that person to reveal how, and why, he was passed over. To do otherwise would necessitate an unconscionable breach of confidence.

Lockwood has, since his appointment, been embroiled in a ‘cronyism’ scandal over the appointment of Tom Whiting, his former number two at Harrow Council. Board minutes recorded that the £140,000 per annum appointment was ‘not previously budgeted for’ and Mr Whiting was not ‘financially qualified’.

A qualified accountant, Lockwood also hired his former personal assistant from the same council, but denied any impropriety in both cases.

He also lost his Deputy, Jonathan Green, in yet another embarrassing scandal after Green, who was recruited by the IOPC from the dental profession, was caught having an affair with a junior colleague. He headed up an inquiry that cleared five detectives of misconduct after Scotland Yard’s botched investigation into false claims made by jailed fantasist Carl Beech. The infamous Operation Midland.  One of the matters in issue was detectives misleading a judge in the course of obtaining search warrants.

In the face of well-rehearsed concerns of two prominent judges, the IOPC dismissed the misconduct allegations. The lead investigator on that probe, much younger than him, was said to be Green’s love interest. She admitted the relationship, but the married Green had denied it when first approached by The Times newspaper.

One of the main critics, retired High Court judge Sir Richard Henriques said he was ‘alarmed by the lack of knowledge of relevant criminal procedure’ of those within the IOPC, lamenting the fact that an ‘error-ridden’ criminal inquiry was ‘followed by such a lamentably slow and inadequate process’.

Green’s lover was replaced as lead investigator by another young female who had joined the IOPC, 16 months earlier, from Topshop, a leading clothing retailer. Not noted, of course, as a training ground for major police corruption investigations.

Against that troubled background, and being adjacent to current high profile and seriously unsatisfactory IOPC investigations involving such as the spectacularly failed Operation Resolve probe into the Hillsborough Disaster; outfall from the nationally known Anthony Grainger Inquiry; another high profile police shooting that resulted in the death of Yasser Yaqub on a slip road off the M62 near Huddersfield; and the death of Oldham man, Andre Moura, following a sustained beating in the back of a police van; a judgment was handed down at the Royal Courts of Justice this week in what appears, at first blush, to be a case of much lesser significance: A Section 18 search warrant, obtained by way of the Police and Criminal Evidence Act, 1984 (PACE) was followed by the mishandling of the partially disabled detained person, by a group of Hertfordshire and Thames Valley officers, that resulted in relatively minor injuries.

The incident happened in 2013. It has taken seven years of determined struggle, against the police and their gatekeeping ‘watchdog’ for the complainant, Julian Watson, to reach the stage where matters are heard, for the first time, before an independent arbiter. Almost three of those years have been spent waiting for a hearing of his judicial review application. The decision challenged was made by the IPCC in December 2017, and permission was granted by noted police action lawyer, Clive Sheldon QC, sitting as a High Court Judge, in July 2019. No explanation is given in the judgment as to how such an interminable delay came to pass.

The IOPC had considered an appeal by Mr Watson against a decision of the Hertfordshire Constabulary (“Hertfordshire”). He had complained about two of their officers. The force had decided that one of them, Police Constable Lobendhan, should face disciplinary proceedings, but the other, Police Sergeant Jinesh Solankee, had no case to answer. The watchdog decided not to uphold the appeal against the decision in respect of PS Solankee.

The background to the case is taken almost verbatim from Mr Justice Chamberlain’s concise judgment: In the early hours of 24th December 2013, PC Lobendhan and PS Solankee went to Mr Watson’s home in Milton Keynes to conduct a PACE search. Mr Watson did not want to let them in. There was a scuffle at the door during which PS Solankee discharged PAVA spray. The officers then entered and arrested Mr Watson for obstructing a constable in the execution of his duty. They handcuffed him in what is known as the “front stack position”, that is to say with his hands in front of his body. Two officers from Thames Valley Police (“TVP”), Police Constable Morgan-Russell and Special Police Constable Badshah, came to assist. A search of the house was conducted. A small quantity of cannabis was found. Mr Watson was arrested on suspicion of possession of a class B drug with intent to supply.

PC Lobendhan and PC Morgan-Russell took him to the police car and then on to Milton Keynes police station. The other two officers also travelled to the station. The custody suite was in a temporary building, accessed by external metal steps with a sharp non-slip coating. Mr Watson suffers from sciatica and trapped nerves, having fractured five vertebrae in a fall. He told the officers that he could not get up the steps with his hands cuffed in front of him. PC Lobendhan and PC Morgan Russell dragged him up the steps by his arms. He was facing down the steps in a semi-seated position. He suffered cuts and scratches on his way up. PS Solankee observed these events and did not intervene. Mr Watson was then booked into a cell.

Mr Watson was never convicted of any offence arising out of the search and arrest. The only charge to proceed was one of obstructing a police officer in the execution of his duty. That charge was dismissed by the local magistrates.

In the meantime, on 31st December 2013, Mr Watson had made a written complaint about the conduct of the officers who arrested him. It covered several aspects of his treatment on 24th December, 2013. The one that matters for the purposes of the judicial review was “unnecessary brutality and injuries sustained in dragging me up steel nonslip sharp jagged steps to the Custody Office”. Mr Watson described what happened as follows:


“At the entrance to the Custody Office I told the police officers that my mobility disabilities would prevent me from being able to get up the ten steps with only one handrail and with handcuffs on. They refused to remove my handcuffs even though they were at least four officers present and, instead, one of them said: ‘If you don’t get up those steps we will drop you and drag you up and it will not be a pretty sight’. I again said that I could not negotiate the steps with the handcuffs on and that having told them of my disability is it was their responsibility to take care of that and act in an appropriate manner.


“The next thing I was aware of was being pushed backwards onto the steps and something (probably a foot or leg) put behind my legs making the trip over backwards and land heavily on the first few rungs of the steps. My dressing gown belt became undone so the front part of my body was exposed. They then proceeded to lift my arms above my head and pull on the handcuff central connector and drag me up the steps backwards. The steps are steel and finished on the step and nosing with very sharp gravel type non-slip finish.


“I was in considerable pain when I was dragged into the front desk area of custody, and after lashing out at their attempts to pull me to my feet, I was eventually allowed to kneel and pull myself up using a bench and wall. I notified the custody sergeant again of my disabilities and medication for it. I also asked for medical attention to my injuries that hurt very badly, but that I could not see as they were mostly to the back of my legs. During this time my dressing gown belt became loose and I was unable to gather the sides together and secure the belt with handcuffs on, so much to my embarrassment everyone was sniggering my immodest exposure.”


The complaint was considered by an investigating officer at TVP, Mick Osborne. He considered Mr Watson’s account, alongside those of PC Morgan-Russell, PS Solankee and PC Lobendhan. SPC Badshah had, by that time, left TVP and, he said, without explanation, it was not considered practical to obtain a statement from her. Mr Osborne also considered the custody record and viewed CCTV footage of the custody suite at the time when Mr Watson was brought into it. Mr Osborne produced a report on the basis of which a decision-maker in TVP decided that neither of the two TVP officers had a case to answer.


Mr Watson, unsurprisingly, exercised his right to appeal against that decision to the IOPC. On 29th March 2018, Philip Harrison, a Casework Manager at the IOPC, upheld the appeal. The letter containing Mr Harrison’s reasons included the following passage:


“…there is available CCTV which does show the top of the custody suite stairs, as well as the entry area of the custody suite. It is clear from this footage that you were dragged up the stairs and then into the custody suite. I have also reviewed photographs of the injuries he sustained while being dragged by the officers. The witness statement made by PC Morgan-Russell, following your arrest, confirms that he, along with PC Lobendhan, dragged you into the custody suite. However, as PC Lobendhan is not a TVP officer I cannot consider his actions or the outcome of the investigation into him as part of this appeal.


“PC Morgan-Russell does not appear to have provided any rationale, or justification, as to why he considered dragging you up an exterior set of stairs, while you were only dressed in a dressing gown, was the most appropriate use of force. There is no available evidence to demonstrate that he considered any other options, such as supporting you as you climbed the stairs or physically carrying you into the custody suite. There is also no evidence to suggest any consideration was given as to whether there were other more suitable access points that could be used.


“I have noted the comments the officers have made about your demeanour during this incident. While it is asserted you were aggressive at the outset in that you refused entry [into your home] by the Hertfordshire officers and used force to keep the door closed, it does not appear that this behaviour continued after entry was gained. After this point your behaviour is only described as abusive and uncooperative. I am also mindful that PC Morgan-Russell describes your resistance outside the custody suite as passive. In my opinion, these circumstances do not demonstrate a clear need to drag you backwards, rather than carry or support to you in another manner.


“In light of the lack of provided rational explanation as to why dragging you up the stairs was the most appropriate course of action, and the injuries he sustained while being dragged up the stairs, it is my view that there is sufficient evidence on which a reasonable tribunal properly directed, could find, on the balance of probabilities, misconduct in relation to PC Morgan-Russell’s use of force.


“The Police Standards of Professional Behaviour state under Equality and Diversity that ‘Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly’. Home Office guidance further clarifies that ‘Police officers pay due regard to the need to eliminate unlawful discrimination and promote equality of opportunity and good relations between persons of different groups.’


“PC Morgan-Russell records in his statement that you made him aware you were disabled prior to you leaving your home. PC Morgan-Russell further details that you stated you were unable to climb the custody stairs and would need to be carried up them. In light of this, and for the same reasons provided earlier in relation to PC Morgan-Russell’s use of force, I consider there is sufficient evidence on which a reasonable tribunal properly directed, could find, on the balance of probabilities, PC Morgan-Russell’s actions were discriminatory.”


Mr Harrison went on to say that the allegation that PC Morgan-Russell used excessive force would, if proven, be a breach of the Standards of Professional Behaviour in respect of use of force and equality and diversity. The breach would not be so serious as to amount to gross misconduct (conduct warranting dismissal), but could justify a finding of misconduct. The appeal was therefore upheld and a recommendation made that PC Morgan-Russell be required to attend a misconduct meeting. The meeting took place and PC Morgan-Russell was found to have committed misconduct. The sanction imposed was “management advice”.


Separately, Mr Osborne’s report was sent to Hertfordshire for a decision on whether either of their two officers had a case to answer. It was referred to Detective Chief Inspector Beeby. She decided, on 26th July 2018, that PC Lobendhan would have had a case to answer for dragging Mr Watson up the steps to the custody suite. As he had left the force in 2016, however, there was no further action that could be taken under Police Regulations. The remainder of the allegations against PC Lobendhan and PS Solankee were not upheld. No reason was given for the latter conclusion, despite the fact that it was, on any independent view, a prima facie breach of Standards in respect of challenging inappropriate behaviour.

Six months earlier, after just 10 years as a police officer, PS Solankee had been promoted to inspector.


Mr Watson appealed to the IOPC against the Hertforshire decision. There were two parts to the complaint: The first concerned what Mr Watson said was the excessive use of force at his home. The second concerned the use of force to drag him up the steps to the custody suite at Milton Keynes police station.


The appeal was determined by Claire Parsons, an IOPC Casework Manager. In a letter dated 17th December 2019, she explained to Mr Watson her reasons for not upholding the appeal. Ms Parsons made clear that she had considered a range of information: Statements provided by PC Lobendhan, Inspector Solankee (who by this time had, of course, been promoted), PC Morgan-Russell and SPC Badshah (contrary to what Mr Osborne at TVP had said); contemporaneous records; the result of the misconduct meeting relating to PC Morgan-Russell; and CCTV footage. In relation to the allegation of excessive use of force in dragging Mr Watson up the steps to the custody suite, Ms Parsons said this:


“In relation to the second part of your complaint where you state that having got out of the police vehicle at Milton Keynes Police Station, you were dragged by the offices from the car park up a flight of stairs into the custody office. I note that PS Solankee confirms in his account that when you all arrived at Milton Keynes custody office you refused to exit the police vehicle, and informed the officers that you could not move. PS Solankee states that you were laughing as you were saying this and as a result the officers removed you from the vehicle by force. PS Solankee describes you as passively resisting as you began to walk up the stairs towards the custody office, and then you began to fall to the floor, telling the officers that you were disabled so they would have to carry you up the stairs. PS Solankee confirms that force was used to get you into the custody suite. I have also reviewed the two statements submitted by PC Lobendhan in December 2013 and 19 July 2015. I note that PC Lobendhan states that you had thrown yourself to the ground whilst leaving your property to enter the police vehicle, and had to be physically helped to the car. PC Lobendhan also states that when you all arrived at Milton Keynes custody office and exited the police vehicle you fell to the floor ‘in a controlled manner’ and then refused to get up, informing the officers that you could not walk. PC Lobendhan states that, as a result of this, he and PC Morgan Russell carried you up the stairs ‘causing minor scrapes and scratches to the DP (detained person in police parlance)’. However, it is of note that PC Lobendhan has not provided any rationale in regards to his decision to drag you up an exterior set of metal stairs with another officer, whilst you were only in your dressing gown. PC Lobendhan has also not provided an explanation as to whether or not he considered other potential options to get you into the custody office, such as using an entrance that is specifically designed for disabled individuals, or arranging for more offices to assist with actually carrying you up the stairs in a safe and more dignified manner.


“I have reviewed the CCTV footage which covers the top of the stairs to the custody office, as well as the corridor which leads to the entrance of the custody office. The footage clearly shows PC Lobendhan and PC Morgan Russell dragging you up the stairs by your arms, as you were in a seated position being pulled backwards. Both officers continued to drag you along the floor of the short corridor and then into the custody suite. In my view, you do not appear to be physically resisting the officers whilst they are doing this. I also note from the CCTV footage that the female officer from Thames Valley police walked in front of you being pulled up the stairs by PC Lobendhan and PC Morgan Russell and PS Solankee was then seen to be walking up behind you, but does not physically touch you. I have also considered the photographs of the injuries you sustained as a result of the officers dragging you up the metal stairs to the custody office.”

Ms Parsons then recorded and endorsed the investigating officer’s conclusion in relation to PC Lobendhan, before continuing as follows:

“In relation to PS Solankee, in my view, there is insufficient evidence that he used excessive force against you. However, I do acknowledge that he witnessed PC Lobendhan and PC Morgan-Russell dragging you up the stairs. Therefore, it is my opinion that it would have been good practice for PS Solankee to have intervened, and made an attempt to establish if there was an alternative entrance to use in order to access the custody block. However, I find that this does not constitute misconduct, but this observation should be relayed to PS Solankee as a learning point for any potential situations of this nature that may arise in the future. As a result, I concur with the findings of the IO (investigating officer) and accordingly this aspect of your appeal is not upheld.”

This is the conclusion that Mr Watson challenged by way of judicial review.

Ms Parsons also said she was unable to comment, or reach a decision on the part of Mr Watson’s complaint dealing with his treatment in custody at Milton Keynes Police Station, because that was for TVP to investigate. That conclusion is not challenged in these proceedings.

The legal authorities governing the principles to be applied on judicial review of a decision of the IOPC were helpfully drawn together by Stephen Morris QC, sitting as a Deputy High Court Judge, in R (Ramsden) v Independent Police Complaints Commission [2013] EWHC 3969 (Admin), at para [21] (read in full here). This is a case I know particularly well, as Tony Ramsden is a good friend and I drafted all the pleadings for that application and the subsequent permission appeal. West Yorkshire Police carried out five investigations into his complaints, each one progressively worse than its predecessor, four were upheld by the IOPC. The one taken to judicial review failed narrowly. The WYP investigator, DCI Osman Khan (as he was then), has recently been appointed to the rank of assistant chief constable in the same force.


During the hearing of Mr Watson’s application, Neil Moloney, an in-house IOPC barrister, drew the judge’s attention to other authorities: R (Chief Constable of Northumbria Police) v Independent Office for Police Conduct [2019] EWHC 3169 (Admin) (read in full here). At paras [54] to [56], HHJ Philip Kramer, sitting as a Judge of the High Court, relied on the decision of the Visitors of the Inns of Court in Walker v Bar Standards Board (19 September 2013), which considered the meaning of the word “misconduct”. In that particular case, a barrister prosecuting in a criminal case had been disciplined for asking an improper question imputing dishonesty on the part of a defence expert. Giving the judgment of the Visitors, Sir Anthony May said at para [16] that “the concept of professional misconduct carries resounding overtones of seriousness, reprehensible conduct which cannot extend to the trivial”. At para [32], he asked the question whether the conduct in issue was “sufficiently serious to be characterised as professional misconduct”. This required him to ask whether it was “particularly grave”. The Visitors said at para [37] that the barrister’s conduct was far from trivial, but was, nonetheless, “a momentary, an uncharacteristic lapse which did not cross the line of seriousness which, in the end, was a matter of judgment”.


In the Northumbria case, Judge Kramer applied this in the context of police misconduct, ruling at para [55] that “for behaviour to amount to misconduct it must fall below a recognised standard of probity or competence relating to the task in respect of which the misconduct is said to arise. If it does not, it cannot be characterised as particularly great. For an error judgement to amount to misconduct it must be the result of actions which fall below those standards.”

In the instant application, the judge summarised the competing arguments of Mr Watson and the IOPC thus:

Mr Watson’s case can be very simply put: Mr Harrison had found that PC Morgan-Russell had a case to answer for dragging Mr Watson up the steps to the custody suite. PC Morgan-Russell was later found guilty of misconduct by using excessive force. Hertfordshire had, itself, found that there would have been a case to answer against PC Lobendhan had he still been serving. There was evidence to show that the two had used force to drag Mr Watson up the steps into the custody suite when there were other ways of getting Mr Watson there. PS Solankee was senior in rank to the other officers. He saw what was happening and did not intervene to prevent it. This means that he participated in the unjustified use of force or, at least, may have been guilty of misconduct by failing to intervene. Ms Parsons’ conclusion that there was no case to answer was not properly open to her in the circumstances. Mr Watson also complained that the IOPC had been late in providing the CCTV footage it had to the court. He said that it appeared that some of it had not been disclosed. A submission that must have some merit, given that the police say that there was no footage of the exterior of what is one of their main stations.


For the IOPC, Mr Moloney submitted that Ms Parsons gave a reason why there was no misconduct on the part of PS Solankee: The CCTV footage did not show that he had, himself, used force. As to the other officers, it was important to note, he said, that no criminal proceedings had been brought against any officer. PC Morgan-Russell was found guilty of misconduct and PC Lobendhan would have had a case to answer had he still been serving. However, the conduct of each officer had to be considered separately; and that is what Ms Parsons did.


In his skeleton argument, Mr Moloney submitted that Ms Parsons’ conclusion was properly reasoned: “Having criticised PS Solankee to the extent that she inferred that it would have been good practice for him to have intervened, she explained why this criticism did not meet the threshold for a case to answer for misconduct.”

When pressed by the judge about where the explanation was to be found, Mr Moloney pointed to that same paragraph and submitted that, when read in context of the rest of the decision, Ms Parsons should be understood to have concluded, in line with the approach in Walker and the Northumbria case, that PS Solankee was guilty of a minor lapse which, even if not trivial, did not reach the threshold for misconduct. In any event, Mr Moloney submitted, there was no reason to assume that Ms Parsons’ conclusion was based on the legally erroneous conclusion that PS Solankee could not be guilty of misconduct unless he had personally participated in the excessive use of force.

The judge’s analysis of Ms Parsons’ decision was conducted by reading her reasons as a whole, whilst bearing in mind that she is not a lawyer or a judge. She was dealing with complaints about two aspects of the conduct of the officers who arrested Mr Watson on 24 December 2013 (the use of force in the initial arrest and the use of force in dragging Mr Watson up the stairs to the custody suite). She was considering the position of both PC Lobendhan and Inspector Solankee. Having viewed the CCTV footage, the judge found there was no basis for disagreeing with her description of the evidence He says that it shows no more and no less than she describes. Contrary to Mr Watson’s belief, he found there is no evidence that any other relevant CCTV footage ever existed but did not expand upon that finding.

Moreover, the central part of Mr Watson’s legal challenge is not to Ms Parson’s description of the evidence, but to her conclusion that PS Solankee had no case to answer. On the footing that he had failed to intervene to prevent the other officers from dragging Mr Watson up the stairs to the custody suite. Mr Watson framed his judicial review challenge as one based on rationality, but the judge noted that, in public law, rationality and adequacy of reasons are often overlapping grounds of review. In a case where the decision-maker has a duty to give reasons, and no adequate reason is given for a conclusion, the decision will be unlawful, at least in a case where the failure to give proper reasons gives rise to prejudice: For example, in the well-rehearsed case of South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953, at para [36].

Mr Moloney did not suggest the contrary. He maintained that the passage quoted from Claire Parson’s letter (para [13]) did convey an adequate reason, or that one could be inferred.


The judge told the court that he had read that passage carefully: ‘There is no legal error in Ms Parsons’ conclusion that “there is insufficient evidence that [PS Solankee] used excessive force against [Mr Watson]”. It is the next part that causes the difficulty, he said: Ms Parsons’ conclusion that PS Solankee’s failure to intervene “does not constitute misconduct” is simply that: A conclusion’.

Contrary to Mr Moloney’s submission, no reason at all is given for it. The absence of a reason might not be fatal in a case where the reason could be inferred, but Mr Justice Russell did not accept that it is possible, safely, to infer the reason in this case: Ms Parsons had concluded that PS Solankee’s failure to intervene was contrary to “best practice”. But this does not show that she had formed the view that PS Solankee’s conduct failed to meet the threshold for misconduct, still less that she had in mind the appropriate legal test. The difficulty with this inference, which Mr Moloney invited the judge to draw, is that it is not the only one that could be drawn. Another is that Ms Parsons thought (wrongly) that, if the officer himself neither uses force nor instructs another to use force, evidence of his failure to prevent an excessive use of force by another officer could never be grounds for misconduct. In the absence of any expressed reason for the conclusion that there was no case to answer, it is not possible to know which of these two approaches (one permissible if properly reasoned, the other unlawful) was being adopted by the IOPC.


If, as Mr Moloney suggested, Ms Parsons was expressing a conclusion that PS Solankee’s conduct, though contrary to “best practice”, was not serious enough to meet the threshold for misconduct, that conclusion called for a justification. Mr Moloney said, in some desperation, that it may have all happened too quickly for PS Solankee to intervene. If that is the case, the judge said, it is unclear why PS Solankee was criticised at all. Mr Moloney next suggested that PS Solankee, a Hertfordshire officer, rather than TVP, did not know Milton Keynes Police Station and so could not be expected to know about other ways of accessing the custody suite. There is, however, no trace of that explanation in Ms Parsons’ reasons; and in any event, it would not make sense, given that she appears to have endorsed the conclusion of the investigating officer that the conduct of PC Lobendhan (also from Hertfordshire) would have given rise to a case to answer had he still been serving.


Having considered both the decision itself and Mr Moloney’s submissions about it, Mr Justice Chamberlain concluded that the decision that PS Solankee had no case to answer was inadequately reasoned and is, on that basis, unlawful. Accordingly, Mr Watson’s claim succeeded.

He made clear, however, that nothing in his judgment should be taken to suggest that the IOPC is obliged to find that Inspector Solankee (as he is now) has a case to answer, far less that he is guilty of any misconduct. The IOPC will have to consider the first of these issues. The second issue will fall to be decided only if the IOPC decides the first is in the affirmative and misconduct proceedings are begun by his force.

According to the social media platform, LinkedIn, Jinesh Solankee fits his role as a police inspector around his job as Managing Director of London-based The Hush Group Limited (read here). He joined Herfordshire Police in 2007.

As for the IOPC, the complaint of Julian Watson has opened the window, once more, into their appalling incompetence, blame avoidance culture and a mindset that the maintaining reputation of the police service over-rides basic statutory requirements of fairness, diligence and independence. Not to mention careful husbandry of public funds.

It would be unfair to single out Claire Parsons, at the very bottom of the perenially hungry food chain. She is as good as the training with which she was provided, the professional support network around and above her, and the corporate culture within which she operates. Her decision would have been quality assured by an, as yet, un-named Senior Casework Manager. In the extant circumstances, it is almost certain that her decision would have been reviewed by her Regional Director, Sarah Green, and, presumably, the IOPC Director of Investigations, Steve Noonan. If so, they are the ones responsible for this debacle. Ms Green, an IPCC/IOPC long-termer, has plenty of previous in this regard. Notably, at the conclusion of Operation Poppy, one of the largest investigations ever undertaken by the watchdog (read more here). She was also one of the central figures in the Anthony Ramsden case.

The performance of in-house barrister Neil Moloney was, quite frankly, embarrassing. If he didn’t know he was on a hiding to nothing, confronted only by a litigant in person who appeared to make no oral submissions, then there is little in the way of salvation for him. Even with 21 years of call, it is hard to see how he would make a living in private practice. But, again, in fairness to Mr Moloney, he is, very likely, the victim of the IPCC/IOPC doctrine of pushing the foot soldiers into the firing line to protect the generals. In this case, that would include their most senior lawyers, the aforementioned Sarah Green and General Counsel (formerly Head of Legal Services), David Emery. Another IPCC/IOPC long-termer, having previously served with the Metropolitan Police Service, but, on the credit side, always approachable, helpful and, in my own professional experience, a likeable individual.

Similarly, the Professional Standards Departments (PSDs) of two police forces emerge with little or no credit. Their preoccupation with defeating any civil claims that may follow public complaints drives all their decisions, however irrational and contrary to the evidence they may be. That, very regrettably, is the same scenario throughout the police service, whatever may be said otherwise.

Will this court reversal bring change to either the IOPC or police force PSDs? Regrettably, history shows that the answer to that question has to be an emphatic ‘no’: Few, if any, other institutions have a less impressive portfolio when it comes to not absorbing and failing to learn lessons from past failures.

Page last updated at 0815hrs on Monday 26th October, 2020.

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We investigated ourselves and found nothing wrong

During this course of this week, details have emerged of three more sub-optimal North Yorkshire Police investigations. These add to a shocking catalogue over the past 10 years or so (read more here).

Not burglaries or car break-ins, but deaths in two different rivers in the county, 12 years apart. Denying closure for bereaved families over periods far longer than necessary.

This followed hot on the heels of the shocking news that NYP had misled the tame local and regional media by asserting that a promised review into the depressingly poor investigation of the murder of Diana Garbutt, in 2010, never took place (read more here).

In April 2007, John David Clarke died in the River Foss near Towthorpe, by a strange coincidence a village with which convicted murderer Robin Garbutt, former husband of Diana, has strong connections. No murder investigation appeared to take place at the time.

Pathology suggested that the circumstances were consistent with drowning and found that Mr Clarke had been heavily intoxicated at the time of death.

At the inquest, also in 2007, the coroner ruled that he had died by drowning, with alcohol intoxication a contributing factor. The deceased had an alcohol addiction and was being treated for depression. On open verdict was recorded.

But the police, led by senior investigating officer Lewis Raw, failed to consider the likelihood of a man in such a condition walking well over four miles from York to Haxby – probably taking around two hours to do so – before accidentally, or deliberately, drowning in the river.

Other clues that this was not an accidental death did not appear to be investigated with the necessary rigour:

Messages recovered from Mr Clarke’s mobile phone card SIM card confirmed that the man now convicted of his murder, ex-Tesco worker, David Roustoby, was the last person to see him alive.

His partner, Sharron Houlden, had reported her car stolen to the police two days after the murder, and it was found burned out a short distance away.

According to police reports, Mr Clarke had made a complaint in November 2006, saying Roustoby had allegedly discharged a firearm and threatened to kill him. The latter was arrested, but never charged.

In the end, it took a confession, filmed at a friend’s house in August 2019, for Roustoby to be finally arrested, interviewed, charged and face trial. He thought he had, literally, got away with murder after drugging and then strangling David Clarke with a tie because he thought ‘he was a nonce’.

Police, during an renewed investigation codenamed Operation Jet, found no evidence to suggest that the deceased had such character frailties and prosecutor, Richard Wright QC, told the jury: “Claiming David Clarke was a sex offender was a wicked self-justification of the terrible thing [Roustoby] had done”.

“David Clarke had no convictions of sex offences and no allegations of any type had been made.”

Mr Wright also told them that it was possible Roustoby had not “entirely killed” Mr Clarke when strangling him and the victim was, possibly, still breathing when he was thrown in the river.

When confronted with his video confession, Roustoby claimed that he was trying to impress his friends; that it was all fantasy. He was jailed for life, with a minimum term of 19 years to be served.

Miss Houlden was handed a sentence of two years and eight months imprisonment (less time already spent in custody) after pleading guilty to assisting an offender at an earlier hearing in September, 2020. 

Another curiosity is that Supt Raw was also the senior investigating in the disastrous Garbutt murder probe codenamed Operation Nardoo (read more here). A recent freedom of information request revealed that a promised review of that ‘comedy of errors’ never took place. Moreover, in recent correspondence with the chief constable, it is clear that the force is still refusing to re-open the case and very uncomfortable over the renewed scrutiny.

19 year old Sonny Ferry, brought up in Rutland but working as a building labourer in the city, also died in the River Foss in York in April, 2019. He had been on a night out with friends but became separated from the group in a local nightclub. It later emerged his bank card had been used several times on the day he was found and police knew it was missing when the body was recovered.

Inspector Lee Partridge said, at the time, it was not known whether the teenager’s wallet had been lost or stolen before he fell in the river or was fished out by person(s) unknown.

There were attempts to use Sonny’s bank card at a Tesco supermarket, two petrol stations and two McDonald’s outlets in the city between 04:22 and 06:10 BST on 14 April, although some transactions were declined.

The police did not tell Sonny’s family about the missing wallet until two months later but, by that time it was too late to check relevant CCTV footage in the areas where he had been.

A 45-year-old homeless man was arrested on suspicion of theft, in relation to the missing velcro-strapped wallet, but was released without charge.

His parents, Stephen and Kate Ferry, submitted a formal complaint to NYP after the initial investigation was closed just one day after Sonny’s death.

The perennially disgraced Independent Office for Police Conduct (IOPC) was asked to investigate the circumstances leading up to his death.

However, the ‘police watchdog’ said evidence did not suggest the officers breached standards of professional behaviour. A decision that may not sustain before a coroner’s or civil court.

An inquest will now take place on a date yet to be determined.

A third victim of what appears to be sub-optimal NYP contact died in the River Ouse in York city centre less than a week later. Sharon Scott, the mother of the dead man said her 29 year old son Steven O’Neill, who was from The Wirral area of Merseyside, was on a night out with his brother, a soldier based at Imphal Barracks, when the tragedy occurred.

Ms Scott said she failed to understand how her son ended up in the river because he could not swim. She was dissatisfied with the explanations of the police and made a formal complaint to the IOPC.

North Yorkshire Police said, at the time, they were alerted by CCTV operators to suspicious activity on Kings Staith in the early hours of a Saturday morning. Upon arrival, a man ran off and a short time later entered the water. A rescue operation was mounted but he was dead when his body was recovered from the river. All deaths where there has been police contact are required to be mandatorily referred to the IOPC for what is described as an ‘independent investigation’.

An IOPC investigator subsequently wrote to Ms Scott, to say that the evidence gathered does not suggest officers breached the police service’s Standards of Professional Behaviour. It is unclear as to who gathered what evidence.

He finalised his assessment of the status of officers involved in the incident preceding Steven’s death, after ‘carefully’ examining ‘all evidence’ including bodycam and CCTV footage, radio transmission recordings and witness statements (much more likely to be informal witness accounts than formal statements). Three visits to the scene and an inspection of life saving equipment were also made by the IOPC, they say, although it is not made clear who made these visits and for what specific purpose.

He said: “My assessment of all the evidence gathered to date in the investigation does not suggest the officers involved with Mr Scott may have breached the Police Standards of Professional Behaviour or acted in a manner that would justify disciplinary proceedings.”

Ms Scott said she was “appalled” by the investigator’s conclusions, and was planning to take civil action against North Yorkshire Police if the decision was upheld.

She said she did not believe sufficient care was taken for her son’s safety when he ran along the riverside – or sufficient action was taken by officers to save his life after he had entered the water.

The IOPC claim that CCTV, footage from body worn cameras, witness statements and police radio transmissions were all analysed, suggests that none was seized by the watchdog in the ‘golden hours’ after the death of Steven. They would have viewed, presumably, what the police wanted them to see. Over the years, their record on such analyses, in a number of other similar death following police contact cases, does not, regrettably, bear a great deal of scrutiny.

Neither does the record of the genuinely appalling record, over a long period of time, of the Professional Standards Department of North Yorkshire Police in covering up wrongdoing by their colleagues. Very strongly aided by a complete lack of oversight, or appropriately rigorous scrutiny, by any or all of the disgraced Police and Crime Commissioner, Julia Mulligan, about whom much is written elesewhere on this website; the aforementioned IPCC/IOPC and Her Majesty’s Inspector of Constabulary.

In the month following the deaths of Steven and Sonny, NYP was forced to apologise to both families for alarm and distress caused when a CCTV operator posted an “inappropriate, insensitive” comment on the York Press Facebook page about drunks putting themselves in danger close to the rivers in York.

The force says it “wholeheartedly acknowledges” that the comments were made without any regards for families grieving the loss of a loved one.

“The member of staff who made the comments will be dealt with appropriately,” the force said, via their press office. “We apologise for the alarm and distress caused”.

The CCTV operator wrote: “Well, I normally keep my opinions on police matters to myself but I work in the police control room and sit in front of the CCTV screens.

“What doesn’t get reported are the number of drunks that put themselves in these dangers.

“Thursday night shift we responded to four persons too close, dangling legs, trying to climb river ladders or walk across the wall across Ouse bridge.

“One idiot jumped in and managed to climb out. That’s four individuals in danger in just one shift. It’s the person’s (drunken and misguided) choices, not the river’s fault.”

Sharon Scott said the comments were posted after The Press had reported on the death in the Ouse of her son. The link being, of course, that he drowned after running away from police officers, who had been alerted by CCTV operators to suspicious activity in the area of King’s Staith.

Ms Scott said that specific role of CCTV operators in the chain of events which led to Steven’s death had made the comments by one of those operators particularly concerning.

She added that the comment had sparked a series of other derogatory, speculative and prejudiced comments about her son from other people on Facebook, suggesting for example that he was clearly a drug dealer as he came from Merseyside.

“This has been incredibly upsetting and distressing not just for me but also for the wider family who are grieving for Steven, and also for the families of other people who have drowned in York’s rivers,”

The operator’s comment was deleted after a complaint to the police, but the comments by other people which it had prompted had remained.

“I personally would like to see the operator sacked,” said Ms Scott.

Ms Scott has previously made clear that Steven was a hard-working man with no criminal record and she had no inkling of what suspicious activity was referred to by police.

Kate Ferry told the same newspaper: “Speaking with the full support of my immediate family, we feel that had the operator previously had the honour of meeting the two members of the York Rescue Boat, as did myself and my husband, and of witnessing the raw grief on the faces of the unpaid volunteers whilst they told us of their first-hand experiences with individuals of all ages who have sometimes drunk a little too much alcohol, in some cases have drunk far too much alcohol and in further cases have drunk no alcohol at all but have nevertheless perished in the rivers of York, they would never have made those comments.

“Ultimately we feel that what is needed at this time is empathy, respect, courage and honesty. We feel we all need to be honest with ourselves. Haven’t we all said something naively and then wished we hadn’t?”

There is no indication on the NYP website that the CCTV operator faced any misconduct proceedings and it is, therefore, unclear what sanctions, if any, were imposed.

Page last updated at 2045hrs on Saturday 28th November, 2020.

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Photo credit: Yorkshire Live

Page last updated at 0610hrs on Saturday 28th November, 2020.

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Photo credit: 

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Bradford GP hits out after latest High Court success

A full report of a handed down judgment of Mr Justice Lavender, Presiding Judge of the North Eastern Circuit, appeared exclusively on this website yesterday evening (read in full here). It followed an appeal to the High Court in Leeds against the dismissal of a wrongful arrest claim, at Bradford County Court, a year ago.

Dr Abdul Rashid, a highly respected GP and medico-legal practitioner, had been arrested at his home in March 2012. A dawn raid involving sixteen officers found him asleep, along with his wife and three young children. The High Court judge found that the arrest was unnecessary and, therefore, unlawful.

Dr Rashid said after the remote hearing yesterday:

“The past eight years have been incredibly stressful for both me and my family in putting right all the wrongs caused by the unlawful arrest, which the High Court has now ruled to have been completely unnecessary. Not least, succeeding at judicial review in 2012, following a suspension from practicing as a GP, instigated by these same police officers, then being exonerated by the General Medical Council in 2016 of all the numerous false complaints made by these officers, and now this latest court success, 4 years later, gives some measure of vindication, but very little satisfaction. The chief constable should now publicly, and sincerely, apologise for the appalling conduct of not only a significant number of his own officers, but also those that represent him”. 

He added; “There should be a full investigation by the police watchdog into the fact that the police officer who arrested me was also holding himself out, at the same time, as a Private Detective to insurance firms, through a bogus company, and the whereabouts of the £183,000 said by the police themselves to have been paid to this officer by an insurance company at the time he carried out this completely unnecessary and unlawful arrest. The police watchdog, and the CPS, should also be looking very carefully at the transcript of the evidence given in court by DC Lunn‘s line manager, DI Mark Taylor, and ask why he complied with an order by a senior officer in a conspiracy to keep the improper activities of the former DC Lunn secret from the all of the suspects his police force was prosecuting, their legal teams and the trial jury, which may make their trial unfair and convictions unsafe”.

Finally, he said: “I am very grateful to my barrister, Mr. Ian Pennock, who has remained steadfast throughout this ordeal and, along the way, has put those who believed they could deny me justice, firmly in their place”.

A response to enquiries made to West Yorkshire Police press office yesterday is still awaited.

Page last updated: Saturday 26th September, 2020 at 2035 hours

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© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Ne

Even more rotten

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

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

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

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

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

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

Dear Andy

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

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

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

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

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

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

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

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

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

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

Yours sincerely

Gail Hadfield Grainger

Bereaved family member and victim – Anthony Grainger”

 

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

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

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

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

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

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

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

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

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

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

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

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

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

– Unlawfully accessed police computer systems.

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

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

Other matters more broadly connected to this troubling case include:

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

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

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

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

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

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

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

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

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

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

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

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

 

‘A grubby little police force’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

‘Rotten to its core’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

gail hg

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

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

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

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

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

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

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

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

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

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

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

Photo Credits: Greater Manchester Police, ITV News

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

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

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Misconduct proceedings described as ‘omnishambles’ by top QC

As an interim measure, this is a contemporaneous record of notes taken during the substantive part of the proceedings of Tuesday 2nd June, 2020, in the hearing of gross misconduct allegations against former assistant chief constable, Steven Heywood. A more complete report will appear later.

This was the second of three days listed for the hearing. Most of the first day’s session was taken up with an opening by Gerard Boyle QC, representing the chief constable of Greater Manchester Police and a viperous response from John Beggs QC, for Heywood, who sought a stay of the proceedings under sections 19 and 21 of the Police (Conduct) Regulations 2012.
Those concern prejudice against an officer, the subject of misconduct proceedings, in the event of protracted and inexplicable delay. Beggs QC described the conduct of the misconduct proceedings by GMP as ‘an omnishambles’.
He also complained bitterly about ‘equality of arms’, in terms of legal representation and funding. In which he felt that his lay client was seriously disadvantaged.

This disciplinary hearing was brought about by Heywood’s seriously troubling evidence given at a public inquiry into the shooting of Gail Hadfield Grainger’s partner, Anthony Grainger, in 2012. It was Gail’s articulate, dignified but persistent campaigning that  largely brought about the inquiry.
The Crown Prosecution Service subsequently refused to prosecute Heywood after he lied on oath at the inquiry and it transpired that he had altered police logs post-facto. They said the evidence was ‘insufficient’ to secure a conviction.
Gail was refused a review of that inexplicable decision on the grounds that she wasn’t regarded by the CPS as a victim.
Decision of Panel, as delivered by Legally Qualified Chair, NAHIED ASJAD LLB (Hons) LLM. [There are a number of typographical errors in the note-taking, these will be corrected at the earliest opportunity].
“These are misconduct proceedings brought by the chief constable of Greater Manchester Police, as the appropriate authority, against former ACC Steven Heywood. The proceedings commenced on Monday 1st June, 2020 and the matter was listed for three days.
“Yesterday, we heard submissions from Mr Boyle QC on behalf of the appropriate authority, and Mr Beggs QC on behalf of Mr Heywood this morning. Mr Boyle QC invited the panel to recommend that the charges against Mr Haywood be dismissed.
“In his submissions, on behalf of the appropriate authority, Mr Boyle stated that the appropriate authority had concluded that it cannot in good conscience, seek to pursue these matters further.
“Well, in this Panel ‘in good conscience’ cannot dismiss the allegations against Mr Heywood, without stating the following. What we are about to say is not directed at Mr Boyle QC, but is directed towards the appropriate authority [Chief Constable of Greater Manchester Police]. We, as a Panel, were convened to hear Gross Misconduct allegations against Mr Heywood; one of the purposes of misconduct proceedings is to maintain public trust and confidence in the police service. The integrity of the police system can only be upheld if officers who are alleged to have committed misconduct proceedings are dealt with appropriately.
“Mr Grainger was shot on 3rd March, 2012. His death has been the subject of a public inquiry, a CPS prosecution and these Gross Misconduct proceedings. We learned yesterday that the same legal department of Greater Manchester Police had been involved in all of these proceedings, in one way or another, yet it is manifestly obvious that no one has strategic oversight of all of these matters. How else can it be explained that matters that today are said to be inevitable and unfair, when not seen in the same light by the same legal team after the IOPC completed its investigation, following a complaint in relation to Mr Heywood.
“The appropriate authority has said that it does not accept the colourful descriptions by Mr Beggs QC of funding by GMP of a chaotic and shambolic approach. This panel goes further however, and states that there has been a fundamental disregard to everyone involved in these proceedings. And by that we mean the family of Mr Grainger, interested parties, Mr Heywood and the public.
“All the expectations and faith in the misconduct process that these individuals had, has been held in abeyance whilst the appropriate authority attempted to sort out issues that, according to its own chronology, it had been working on since at least March, 2019. That chronology shows that they spent nine months, attempting to resolve the issue of intelligence and its impact on the misconduct proceedings. And, according to Mr Boyle, did so in good faith.
“Yet, that cannot be right as, despite not having resolved those issues, they decided to bring these misconduct proceedings. And now, in June 2020, have gone the other way. As we have already noted, up until Friday of last week, they had even prepared the case for hearing with an opening note, in which they relied on a blanket prohibition on the redactions. We are deeply concerned that, despite advice from counsel, despite assistance from the National Crime Agency, and most importantly, despite knowing the history of the case and the outcomes and the criminal proceedings, it is only now two years after the IPCC report was sent to GMP that they now say that they have reflected on the position and realised the inevitable and have been persuaded that it would be unfair to proceed. Reflection and realisation should have occured much sooner. Instead, the family of Mr Grainger are having to leave these proceedings without an outcome.
“They and the public were led to believe, by the very fact that these proceedings were brought, that at least the allegations of Gross Misconduct would be heard. Similarly, Mr Heywood has had to face these allegations for years, only to be told today that the appropriate authority, would be offering no evidence.
“Mr Grainger’s family, Mr Heywood and the public, have been let down by the appropriate authority in this case, and we note that there was no contrition, or apology, to anyone in what was said on their behalf this morning.
“Public confidence in the police force can be undermined if the proceedings themselves are so flawed by delay and bad decision making. But, ultimately, they lead to charges being dismissed, the costs involved in bringing such Gross Misconduct proceedings cannot be in the public interest, either the appropriate authority has accepted delay in this case, as well as procedural irregularity in that the regulation 19 and 21 notices were not issued as soon as reasonably practicable.
“We note that the appropriate authority said that they would be very happy to attend and explain the steps taken, following the CPS decision and progress made but, in the end, doing so would have been an academic exercise.
“This Panel feels that everyone would have been greatly assisted in understanding what has happened in this case, had they heard direct from the appropriate authority, because even now, as we stand here today, it’s not clear why these delays and procedural errors have occurred.
“We do find it necessary to mention that we also have some criticism of the way the defence conducted themselves in response to these proceedings. Nowhere in the regulation 22 response was there any mention of the redactions request being an extant issue. It was mentioned twice in a 23 page document comprising 82 paragraphs. At paragraph 7 it was mentioned in brackets, in the following way. “It would be helpful if the appropriate authority lifted the redactions in this section, to better content contextualise his answer. The second time it was mentioned was in paragraph 66, where it was said, it makes it more difficult for him to answer the issues in this misconduct case with redactions.

ements of a regulation 22 response is that the officer should provide, to the appropriate authority, written notice of whether he accepts the conduct amounts to misconduct, or Gross Misconduct, any submissions he wishes to make in mitigation and which parts of the case he disputes was written notice of the allegations he disputes, and any arguments on points of law, he wishes to be considered.
“Nowhere in the Regulation 22 response was there any reference to Mr Heywood having actively pursued the issue of redactions. Nowhere was it said that this was an outstanding matter, or that the case could not be pursued fairly as it stood, or that illegal point was being taken.
“This only added, therefore, to the surprise that the Panel felt at the turn of events yesterday when Mr Beggs advanced it repeatedly, and that the redactions point was an obvious issue, and had always been since 2018. Indeed, yesterday it was cited as the central issue. But even in the letter to Laura Shuttleworth, which was produced in the bundle it doesn’t say that the issue of redactions was raised as an ongoing or outstanding issue.
“That  had been going on for a year, but only on the basis that Mr Heywood needed them so he could remember his evidence, and it was a request that the appropriate authority should consider it.
“We mentioned that, just to make it clear that that didn’t help matters either in the way that they have been progressed in this case. Turning to the decision that needs to be made. Mr Heywood has retired from the police, these proceedings are brought under the Police Conduct Regulations 2012. As amended, and so he’s being dealt with as ‘a former officer case’, the panel will know that at the conclusion of this hearing.
“We have a duty to produce a report to the appropriate authority, recording our findings, our reason for those findings and a recommendation. We have been invited to make a recommendation that the charges be dismissed. And in the light of what we have said, we make that recommendation today. And that’s all we want to say about this matter.
*** BEGGS
But can we just, through your good offices, point out that a number of media outlets seems to be labouring under the misapprehension that the firearms operation on 3rd March 2012 was not commanded by ACC Steve Heywood. As you know, and I’m grateful that you’re nodding. It wasn’t just as a matter of good reporting and accurate reporting. Could I ask you to make clear that he did not command the operation which led to the shooting of Mr Grainger, lest anyone makes a mistake on that point.
**** NAHIED ASJAD
Absolutely, the facts in this case, need to be understood. Mr Heywood only faced Gross Misconduct allegations as a result of answers that he gave at the public inquiry in 2017, and it was a result of a log that he kept the day before. This incident took place when he had command, but he then rescinded the order, the actual order was made by a different officer. So, the shooting of Mr Grainger, tragically, did not occur, whilst under the command of Mr Heywood and it’s very important that that distinction is made, I agree.
***BEGGS
Thank you very much for that, because the press are more likely to listen to us and to me. Okay. Thank you.
*** BOYLE
No matter of justice, but to thank you and your colleagues for your consideration of the issues in this particular case. Your comments, I’m sure, will resonate with those who are instructing me. Thank you.
*** NAHIED ASJAD
Thank you. Can I thank both yourself and Mr Beggs QC for your very thorough consideration and presentation of the case. And thank you to everyone who has helped with this Microsoft Teams hearing, and its administration. Mr Heywood, that is the end of the case against you. I hope we can move on from this. Miss Gail Hadfield Grainger, thank you for the way in which you’ve conducted yourself during these proceedings, you’ve conducted yourself impeccably and with the greatest of patience and we are grateful for that. That is the end of the hearing. So I’m now going to be formally closing proceedings Thank you everyone.
CLOSE SESSION

The Panel Chair, Nahied Asjad is an experienced Crown Advocate and has worked for the CPS since qualifying as a Solicitor in 2002 and transferred to the Bar in 2007. She has prosecuted in all courts, including the Magistrates Court and the Youth Court and currently works as a Crown Court advocate, dealing with serious offences. Nahied is a trained Pre-Trial Witness Interviewer and Proceeds of Crime Specialist and was the lead lawyer in the largest money laundering case in Leicester, leading to a £5 million confiscation order. Nahied reviews offences at the police station and decides upon charge and prepares cases in the office and makes decisions as to whether or not to prosecute.
The response of the force and an unreserved apology

Greater Manchester Police’s Deputy Chief Constable Ian Pilling, about whom plenty is said elsewhere on this website, said the force made the decision not to pursue the proceedings further and invited the Panel to dismiss the gross misconduct charges against Mr Heywood following submissions made at the hearing:

“This misconduct case involved consideration of some complex issues relating to certain information and intelligence which, for legal reasons, could not be provided to Mr Heywood and could not be made public or indeed even shared with the panel dealing with the misconduct hearing.
“Evidence relating to those things was heard in private at the Anthony Grainger Public Inquiry and as such was redacted from the public records of that Inquiry.

“The law concerning what can be disclosed in a public inquiry is different from that in misconduct proceedings.”

Pilling, who holds the Command Team professional standards portfolio in GMP, said the force accepted some of these matters “could not be overcome” and it would be “unfair to pursue the case against the retired officer” following submissions made to the Panel on Monday.

“These are complex issues and the available options were often constrained by the law.

“Decisions have been made based on professional advice and in the best interests of reaching the most appropriate outcome. However, in this case this hasn’t been possible, which I very much regret.

In answer to the stinging criticism made by the Panel Chair, Pilling said: “In her comments, the Chair has been clear that the Panel are of the view that GMP did not deal with some key elements of this matter in an appropriate way.

“Whilst we need to examine the comments more fully, we absolutely accept that mistakes have been made and this matter should have been handled much more effectively.

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

On behalf of the Grainger family, friends and campaigners Gail Hadfield Grainger said:

“This misconduct hearing follows on from a public inquiry, where the police were to blame for killing a man, due to inaccurate intelligence,  about which Mr Heywood later went on to mislead the Inquiry.  Questioned on the validity of entries he made in a contemporaneous log he admitted that some had been forged using different coloured pens and backdated.

“These matters need to be taken seriously. Given the stark criticisms made in Judge Teagues report, and now the manner in which GMP have delayed this misconduct hearing, and in my opinion, purposely, to ensure it does not go ahead, this is not in the name of justice, but to save the Chief Constable  and the force further embarrassment”.

“This misconduct process was set up to fail and the reasons behind its collapse need to be taken up at the highest level and those responsible brought to book. It makes a mockery of Teague’s report, of the justice system, to this Panel, and, most of all, it makes a mockery of the public”.

Holding to account

The person responsible for holding the chief constable to account, Greater Manchester Mayor, Andy Burnham, did not respond to a request for comment.

Postscript

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

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

 

Page last updated: Friday 21st August, 2020 at 1345 hours

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

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© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

‘A regrettable lack of professionalism’

In an article published recently on this website, ‘That dubious constabulary merits careful investigation‘ (read in full here) a section referred to a number of catasrophic investigative failings, by North Yorkshire Police, following the murder of Diana Garbutt at Melsonby post office in March 2010.

Her husband, Robin Garbutt, was convicted in Teesside Crown Court just over a year later. He was sentenced to life imprisonment and is currently held in a high security jail near Durham, HMP Frankland.

The case has, over the years, attracted a large amount of publicity, most recently as a result of a third application to the Criminal Case Review Commission. He continues to protest his innocence.

This is an amplification of the catalogue of blunders from the previous article (the numbering of the paragraphs is the same):

(i) Police claimed a soiled, bloodstained pair of boxer shorts found in an outside rubbish bin belonged to Robin Garbutt. They belonged to a neighbour. This ‘evidence’ enabled the police to persuade Northallerton Magistrates’ Court to refuse bail at the committal hearing and have Garbutt held on remand at Holme Hall prison. Garbutt had protested vehemently they were not his. A matter that could have quickly, and easily, been checked, by the police, if they had checked the size; they were too big. Had they needed to, of course. It also later transpired that the shorts had been found in the neighbours’ bin, not in the one used by the Garbutts. This does not go to the guilt, or innocence, of Garbutt, but revealed a troubling, prejudiced police mindset against him that threads through the investigation all the way to trial.

(ii) An iron bar – said to be the murder weapon – has caused consternation over the years, both regarding the circumstances of its alleged discovery, two days after the murder, and the results of DNA tests taken from it four months after its discovery – and only at the insistence of the Crown’s barrister prior to the pre-trial review in September, 2010. Until that hearing, the defence were completely unaware of the murder weapon. The fact that a police officer’s DNA showed up on the bar was also, at first, concealed from Robin Garbutt’s lawyers. The officer involved in the discovery of the iron bar on 25th March, 2010 did not make a witness statement until 12th October, 2010.

The bar has Diana’s DNA on one end, the DNA of the police officer at the other end and the DNA of one other unknown male is also present. There is no DNA of Robin Garbutt on the bar, a point upon which the Garbutt campaigners, quite rightly, place great emphasis. When it was first forensically examined, the officer’s DNA was also classed as an unknown male DNA. The Police Forensic Scientist, Sarah Gray, clearly states that the DNA on the bar is in keeping with the carrier not wearing gloves. Once it was established that DNA on the bar was linked to a North Yorkshire Police officer, the forensic expert made a supplemental statement to say the DNA could have been transferred onto the bar through cross-contamination. This sequence of events is concerning on any level. But there is more.

The police officer whose DNA is present on the rusty iron bar, PC Darren Thompson, says he cannot remember which of his colleagues he was paired with during the search, but he can remember the colleague who first found the bar and called him over to it. The officer can also remember which of his other colleagues was talking to garage owner, Bill Nixon, as he was also part of that conversation. He assumes there would probably have been another colleague present whilst searching, as they always search in pairs, but he cannot recall who that was. This begs the obvious question of why pocket note books, or duty rosters, or the policy book was not checked. Mr Nixon told the court at the murder trial that he had never seen the bar before on his premises. He also asserted that members of the press used that section of the wall as a vantage point for taking photos of the scene outside the post office.

On Friday 26th March, 2010, a local newspaper reported that underwater search teams had been focusing on a beck and gullies for evidence of a discarded weapon and bin collections had been suspended in the village. Other searches had been taking place in the area and motorists were being stopped and questioned by officers. Some of this activity appears to have taken place after the alleged discovery of the iron bar the previous day.

(iii)  Much has been written already about the strands of hair recorded on camera by a Crime Scene Investigator, on the morning of the murder. They were on a pillow, next to a bloodied hand print. They never made it to the forensic science labs after being captured on scenes of crime photographs. A DNA expert, under cross-examination at the subsequent murder trial, said it could have given DNA evidence [if the follicles were present] to prove that there was someone else in the bedroom, and that Robin was telling the truth. This clump of hair was allegedly lost by North Yorkshire Police. It is clear from the photographs that the clump is not the colour of Diana’s or Robin’s hair.

This is not new evidence and will not assist the Garbutt campaigners in the third application to the CCRC. Indeed, I would go further and say that it is very unlikely to have been pulled, by a drowsy female in her night attire, from the head of a man wearing a balaclava, holding an iron bar as a weapon in a surprise attack. With an accomplice, according to Robin Garbutt’s account, equipped with a handgun.

There is also the possibility that it was not even human hair. Or planted there to cast suspicion away from the killer. We will never know.

The claimed loss of this potentially case changing exhibit, by the police, is seriously troubling, altough to one with an in-depth knowledge of this particular force, not entirely surprising. Anyone with basic knowledge of preservation of a crime scene, handling of evidence and continuity, will know that evidence does not disappear without trace, or satisfactory explanation. It needs a willing hand to do so. At the end of the trial NYP should have referred its disposal to the police watchdog, and another force appointed to criminally investigate what has the appearance of an attempt to pervert the course of justice. Perhaps, a more robust approach from Mr Justice Openshaw (as he was then) would have ensured that happened?

(iv) DNA tests taken from the pillow are now the subject of further challenge by the Garbutt campaign team over potential cross-contamination with biometric samples taken from the murder weapon. They say that the policeman’s DNA found on the bar may also have transferred onto the pillow near the bloodied head of Diana Garbutt. Rust samples were found in her matted hair.

(v) Two bedside lamps were removed by the police from their position within the crime scene, and placed in a cupboard. There were signs of blood spots on at least one of them. At trial it was heard that there was no disturbance at all in the bedroom where Diana died, she was struck as she lay sleeping. Campaigners now say, reported by The Justice Gap, that they were picked up from the floor. This is, curiously, at odds with what is reported on the Robin Garbutt Official website.

Screenshot 2020-04-13 at 11.51.48

(vi) A bedside mirror and carpet beside the bed were also not tested for blood spatter say the campaigners. There was no blood spatter on any of Robin Garbutt’s clothing.

(vii) The defence team assert that the fish and chip wrappers, containing the remnants of the couple’s supper on the evening before the murder, were the wrong ones. Police recovered some wrappings from an external bin. The actual wrappers were still in a waste bin inside the house. This casts doubt on the analysis of the food decomposition in Diana’s stomach by the police’s chosen expert.

(viii) Questions for Melsonby villagers, interviewed during post-incident house to house enquiries, included confirmation of their hair and eye colour, whether they wore body piercings, or a watch. Householders were also asked ‘intrusive’ questions about neighbours. It did not emerge at trial why these questions were asked but were likely to have been for entry onto the HOLMES major enquiry database. Another line of enquiry was that there was a ‘swingers club’ in the village.

(ix) Detectives issued an appeal regarding owners of white vans, and a number were interviewed and eliminated. But a similar appeal was not made about a metallic or electric blue car seen driving erratically around the village on the morning of the murder. Or a vehicle seen parked near the entrance to Low Grange Quarry, about a mile from the post office along West Road.

(x) According to CCTV evidence, a vehicle following Robin Garbutt was picked up eight times on the journey to Stockton-on-Tees and back, via Darlington, on the night before the murder. The campaign team say that the driver was not traced and the vehicle was sold four days after the murder.

(xi) Police and prosecutors claim that no struggle between Diana and the killer took place before the murder. That is disputed by the Garbutt campaigners whom, variously claim, pictures were knocked over and two bedside lamps were also knocked over.

(xii) A heavy knit balaclava and a ball-bearing handgun (these replicas are usually indinguishable from the live round-firing versions) were found by Cleveland Police in Thornaby, 19 miles from Melsonby, on 24th March, 2010. The campaigners say there was no attempt to link them forensically to the Garbutt murder and armed robbery.

(xiii) At first, the police accepted the time of death of Diana Garbutt was 6am at the earliest. This stance was changed at trial, which started a year later, based on expert evidence from a forensic archeologist, Dr Jennifer Miller. She calculated a time of death between 2.30am and 4.30am based on rate of consumption of a fish and chip dinner eaten by the couple on the previous evening.

(xiv) Neighbour Pauline Dye was allowed to wash her bloodstained hands in the Garbutts’ bathroom sink after handling the body of Mrs Garbutt. This, yet again, demonstrates a baffling lack of understanding of the the importance of crime scene management or even basic policing procedure.

At the murder trial, Mr Justice Openshaw said during his summing-up that the police’s management of the crime scene showed ‘a regrettable lack of professionalism‘. He was being generous, on any independent view. There is no evidence that he wrote to the chief constable either during or after the trial to request an enquiry into these failings. If he didn’t, then he failed in his public duty to maintain confidence in the criminal justice system.

Determined  efforts to establish whether a review into the actions of Senior Investigating Officer, Detective Supertindent Lewis Raw, and the rest of the Operation Nardoo team, was ever carried out eventually received a response from North Yorkshire Police after a seven month delay. No such review did take place, despite a promise as such being med to regional and national media at the conclusion of the trial. The only semblance of any form of evaluation was a ‘de-brief’, conducted and chaired by Raw himself, that took less than a day (read here).

From a personal standpoint, I can say with some certainty that policing chaos appears to run in the family. His brother, Allan Raw, was an inspector in the infamous Professional Standards Department in West Yorkshire Police in 2010 (the year his brother played a leading role in the bungled Garbutt murder investigation) when I had extensive dealings with him over what one might consider a simple, straightforward issue: If three police officers each give a different account of the same event, how many are telling the truth? His answer of ‘all of them’ was unsustainable on any independent view.

As discussed in the fourth article in this series (read in full here), this dreadful catalogue of police failures warrants further investigation, by a metropolitan police force (for example neighbouring West Yorkshire or Northumbria Police), in order to maintain public confidence in the police and the criminal justice system.

Readers may be assisted by referring to an at-a-glance timeline of the key events before and after this troubling crime. Read here.

Page last updated: Monday 13th April, 2020 at 1600 hours

Photo Credits: ITV News, PA, Daily Mail.

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

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

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Fourth time lucky?

This is the fourth in a series of six articles that comprise the deepest dive yet into the murder of Diana Garbutt, by her husband Robin, in March 2010. She was bludgeoned to death in the living quarters above Melsonby Village Store and Post Office as she lay sleeping in bed.

The first article, headlined ‘Don’t do anything stupid, we’ve got your wife‘ can be accessed here.

The second, ‘That particularly dubious constabulary merits careful investigationhere.

The third, which is an amplication of the list of investigative failings which forms a part of the second article, ‘A regrettable lack of professionalism’, here.

The fifth looks at the appalling conduct of the campaigners behind this innocence claim, here.

The sixth is an in-depth analysis of an interview by Dr Sandra Lean of the lead campaigner, Jane Metcalfe, here.

From his cell in HMP Frankland, 54 year old Robin Garbutt continues to vehemently deny the crime of which he was convicted at Teesside Crown Court in April, 2011. A stance he has never varied since the day he was arrested, three weeks after his wife was so tragically and brutally killed.

His protestations have spawned a well-publicised miscarriage of justice campaign, led by Garbutt’s close friend, the aforementioned Jane Metcalfe, and his sister and brother-in-law, Sallie Wood and Mark Stilborn.

Robin Garbutt campaigners - ITV package
Jane Metcalfe (left) discussing the case with fellow campaigners during a televised interview with ITV reporter, Jon Hill.

The catalyst for recent widespread coverage of the case is a third application to the miscarriage of justice watchdog, the Criminal Case Review Commission (CCRC). The first was submitted in 2015, the second believed to be in 2018. These applications followed an unsuccessful appeal to the Criminal Division of the Court of Appeal in May 2012. Three senior judges, led by Lord Justice Hughes, ruled that the conviction was ‘safe’.

Details of the previous Garbutt applications, and the CCRC’s Statement of Reasons for rejection, are scarce. On the campaign website there is a brief mention of the 2015 application being made, but nothing thereafter. Curiously, there isn’t a single mention of the specific grounds upon which those two prior applications were made, or why they were dismissed, in any of the multitude of press and television reports. The suspicion is, absent of explanation from the campaigners, that the grounds were not strong enough for the CCRC to even launch an investigation.

That surprising omission is a case in point in an ‘exclusive’ given to The Metro newspaper on 6th March, 2020. But, it appears, from reading Sam Corbishley‘s piece, that the grounds for the latest Garbutt application are as follows:

(i) DNA evidence: When the murder weapon, a 58cm rusty iron bar, was first swabbed, it was found to contain a full DNA profile belonging to an unknown male, and another which later matched one of the police officers present when it was discovered, PC Darren Thompson. The campaigners now suggest, following further testing, that the same constable’s sample could potentially be among a mixed profile, of at least three unknown males, recovered from a rust mark on a pillowcase in the bedroom where she was killed – despite the officer not being on duty when the scene was examined – suggesting key evidence may have been contaminated.

~ This part of the application may meet the test for ‘fresh evidence’, not before the jury at the murder trial, if the techniques for DNA profiling have changed since. Otherwise, the CCRC will, quite legitimately, ask why the testing was not carried out pre-trial and the issue of alleged cross-contamination raised there by the defence team. They will, one presumes, also look at what evidence was presented to the jury regarding the murder weapon, the competing arguments during closing speeches and how they were directed on the law on that specific item and, most crucially, whether the campaigners’ fresh information would have impacted on the jury’s route to verdict. The answers to those questions appear to be (a) The weapon has been tested post-facto by a different scientist with results that do not go much further than speculation. (b) The jury was aware that there was no Garbutt DNA on the weapon and there was DNA of the police officer, and at least one other unidentified male identified on it. The defence argued strongly that this was a crucial strand supporting Garbutt’s claimed innocence. (c) The jury was also aware of rust specks on the pillow and cross-contamination onto Garbutt’s clothing. The judge directed them to disregard that piece of scientific evidence. (d) The jury’s finding was that the armed robbery alleged by Garbutt didn’t take place. Largely, as a result, one might fairly infer, of hearing Garbutt’s testimony in the witness box. Which led, immediately afterwards, to the judge revoking his bail mid-trial. This new DNA evidence, if that is how the CCRC classify it, would make no difference at all to the verdict. Particularly, in the light of the DNA on the murder weapon not matching any biometric data on the Police National Computer (PNC). It would be highly unlikely that perpetrators of such a brutal, random, murder and armed robbery would make the quantum transition from ‘clean skins’ to serious, highly dangerous criminals in a single leap. It would also be at least as remarkable that they would have returned to a law-abiding life, having escaped detection from the killing of Diana Garbutt and a successful £16,000 raid on a rural post office.

Conclusion: It is doubtful that this ground would persuade the CCRC that the ‘reasonable prospect of success’ test is met and a referral of the case back to the Court of Appeal would be appropriate. It does, however, raise further grave concerns about the conduct of the police investigation [see also ground (iv) below].

(ii) Time of death: The food digestion scientist who gave expert evidence at trial, Dr Jennifer Miller, has since, the campaigners say, been contradicted by a Home Office pathologist. Jurors heard her proposition that Diana may have died between 2.30am and 4.30am. Well before the Post Office central locking system de-acivated the alarm and allowed the safe to be woken up, at 8.30am. Dr Miller’s report may have further persuaded the jury that Garbutt’s claims of a robbery gone wrong was false, but given that it concerned, bizarrely, the rate of consumption of a fish and chip supper there can be no certainty about that. Especially in the light of the other more conventional scientific evidence put before the jury. The expert now instructed by Garbutt’s legal team, Dr David Rouse, has concluded the time of death may have been much later than 4.30am – possibly even after 6.45am.

~ The matter of the timing of Diana’s death was well ventilated at trial. The key evidence was from the pathologist who examined Diana’s body at the scene, Dr Stuart Hamilton. He was a prosecution witness and gave testimony to the effect that death occured at least one hour before Diana’s body was discovered, and possibly, in the early hours of the morning. Cross-examined by defence counsel, he said that it was “reasonably possible” for death to have occured later. It also emerged that a second pathology report had been commissioned by the Garbutt defence team – and its conclusions were, more or less, the same. A short time after retiring, the jury asked to see the statement of a witness, Brian Hird, who said he heard Diana speaking through a closed door at 6.45am, even though he didn’t know her. As a matter of law, the request was refused, but the jury was plainly alert to the significance, or otherwise, of that evidence and, more widely, the other expert assessments concerning time of death. The new opinion does not appear to alter the position at all.

Conclusion: For all those reasons set out above, it is more likely than not that the CCRC will reject this ground.

(iii) Horizon Software scandal:

Defects in the Post Office’s Fujitsu-driven IT system culminated in them recently settling a high profile High Court case. A consolidated claim, brought by over 500 former postmasters and, unoriginally, known as The Post Office Group Litigation, was heard before Mr Justice Fraser and, ultimately, after a bitter fight, resulted in an award of £58 million in damages (read full judgment here). Although Robin Garbutt is not one of the 60 postmasters and postmistresses who applied to the CCRC, regarding criminal prosecutions brought against them following thefts alleged by the Post Office, it is said that his campaigners hope the added weight of the scandal will help force the criminal justice watchdog into action. 39 cases have already been referred by the watchdog to the Court of Appeal.

~ The attempt to piggyback the scandal by the Garbutt campaigners has been successful to a degree: Their latest application to the CCRC has attracted more press and television coverage than it might otherwise have done. The downside to the strategy is that the resort to leveraging public support in this way simply invites closer attention to how weakly grounded the rest of the application really is. On the The Justice Gap website, they report that the campaigners now assert that similarities in the Horizon failings existed in the Melsonby post office accounts at the material time. That is to say, in simple terms, the software showing more cash deposited in the safe than was actually held there, and the assumption by the Post Office, in all cases, that the difference was pocketed by postmasters. The difficulty for the campaigners, within the terms of this application, is that Robin Garbutt asserted that the sum in the safe – and allegedly stolen by the armed robber – tallied with the accounts. There was no apparent discrepancy. If there was no armed robbery and an empty safe, then the only explanation left is that Robin helped himself to the cash. The CCRC will also be alert to fact that he admitted false accounting during the course of his evidence (“not all the business [receipts] went through the till” he said under cross-examination).

Conclusion: Based on what is set out in the Court of Appeal judgment, regarding the impact on the jury of the Post Office evidence at the murder trial, and the applicable law regarding the proving of motive, this ground appears to be misconceived.

(iv) Television footage of West Road, Melsonby on 24th March, 2010:

This, apparently, shows the wall outside Nixon’s Garage (see blue map pin) where the murder weapon was found the following day. The iron bar is not there. A fact, it is said, confirmed by at least one journalist who sat on the same wall, as a vantage point, on that day. Bill Nixon says he had never seen the bar before on his premises, and that members of the press were stood on that section of wall taking photos. On some television footage, there appears to be a mobile police cabin (from which a forensic science officer emerges) positioned as close as six to eight feet from where the bar was found. It was more or less opposite the rear entrance to the Village Store and Post Office premises.

Screenshot 2020-04-07 at 20.08.22

~ This, again, may meet the fresh evidence test. But the CCRC may adopt a counter argument and say: Why didn’t the defence team challenge more rigorously the peculiar circumstances in which the rusty iron bar was discovered? By, for example, obtaining police and press photographs, and TV film, between the pre-trial review on 28th September, 2010, when the existence of the weapon was first disclosed to them, and the start of the trial in March, 2011? The question is also likely to be asked by the watchdog as to why the journalist(s), or indeed the film crew, didn’t come forward with this vital information in the period between the time the discovery of the iron bar became public knowledge and the early part of 2020? A gap of over 9 years.

Nevertheless, the CCRC will have to anxiously consider these two competing arguments within their overall assessment of the application: (a) Campaigners rightly point to the flawed prosecution hypothesis regarding the murder weapon, in that Robin Garbutt had placed the iron bar on top of the wall after bludgeoning Diana, together with an oblique suggestion that he had scraped his knuckles, that morning, scaling the eight foot high wall. Those factors advance both the arguments that the case against him wasn’t entirely well grounded – and that he suffered further prejudice. (b) On the other hand, conversely and perversely, the absence of the iron bar, for two days after the murder, further undermines the claim, by Garbutt, that the murder was committed by an armed robber. It would be far-fetched in the extreme to expect a criminal of that class to, firstly, hold on to a weapon, with the victim’s DNA upon it (and possibly his own), then, secondly, stealthily return it to a position around 20 metres from the scene of the murder, two days later. Even without the latest evidence, the jury found that Garbutt had lied about the armed robbery and before that, the trial judge, Mr Justice Openshaw, was so concerned about his evidence in the witness box that he revoked his bail and had him remanded in custody for the remainder of the trial. There is, then, the matter of positioning this ‘new evidence’ in the matrix of (c) the overall police conduct of the investigation, which is covered in great detail in two earlier articles on this website: Is police impropriety a factor in the belated discovery of the iron bar so close to the murder scene? No doubt the North Yorkshire force will have plenty to say to the CCRC on that topic, with the considerable benefit of their submissions being made well away from public scrutiny.

Conclusion: This ground is the one that should trouble the independent reviewer the most, and is the only one that may go close to persuading the CCRC that the appropriate test is met. But, irrespective of the watchdog’s ultimate decision, as with ground (i) the latest mystery around the ‘discovery’ of the iron bar raises further serious concerns about the police investigation.

Will the CCRC refer the case back to the Court of Appeal

The key points the CCRC consider, in determining an application, are whether there is a ‘real possibility’ the appeal court would overturn a conviction, sentence or finding and whether this real possibility is due to evidence or argument (or in the case of sentences, evidence or information) which was not put forward in the trial or appeal. This is generally referred to as the need for ‘new [or fresh] evidence’.

‘Real possibility’ was assessed by the High Court in the case of R v CCRC ex
parte Pearson [2000] 1 Cr.App.R. 141 as being “more than an outside chance
or a bare possibility but which may be less than a probability or likelihood or a racing certainty. The Commission must judge that there is at least a
reasonable prospect of a conviction, if referred, not being upheld.”

The CCRC cannot perform a ‘re-run’ of a trial just because the evidence of the defence was not accepted by the jury and the evidence of the prosecution was. They have to be able to present to the appeal court a new piece of evidence or new legal argument, not identified at the time of the trial, that might have changed the whole outcome of the trial if the jury had been given a chance to consider it.

As set out in the previous Robin Garbutt articles on this website, the jury had two main points to resolve, the approximate time of the murderous attack and did the armed robbery actually take place? The Court of Appeal, in 2012, was asked to rule on new evidence brought before them. This was Post Office Ltd records dating back to 2004. At trial, only the records dating back to 2009 were made available to the defence. There was also new evidence, of marginal significance, in regard to variable limits for cash requests, made by postmasters to HQ, which would trigger an enquiry or request for justification. The appeal court ruled that the conviction was not unsafe, as the Garbutt legal team argued. Lord Justice Hughes underscored the jury decision, with comprehensive reasons set out in six lucid paragraphs (26 to 30 in the judgment), that the robbery did not take place, and was one in which they would be very slow to interfere. Those reasons included three generous assumptions in Garbutt’s favour.

Taken individually, or together, the grounds in the latest CCRC application do not appear, from what is in the public domain, to be compelling enough to meet the real possibility test of overturning that finding by both the jury and three law lords. It is also clear from the action taken mid-trial that Mr Justice Openshaw did not believe Garbutt was telling the truth, either.

The overall conclusion, therefore, is that Robin Garbutt and the campaign team face further disappointment. One that is completely at odds with the bullish statement of solicitor, and honorary QC, Glyn Maddocks: ‘The way in which the forensic work has been handled and dealt with is disgraceful. It’s absolutely disgraceful and no-one could possibly argue otherwise’. He adds, ‘It’s just such a shocking case. If it was you, or your relative, you’d be absolutely horrified.’ With the key planks of the original prosecution case having seemingly disintegrated, Mr Maddocks says he is not even sure the Court of Appeal would pursue a retrial if the case is referred back to them.

One thing is abundantly clear; either lawyer, Glyn Maddocks, or journalist, Neil Wilby, will have egg on their face when the CCRC make their decision. The reader can take their pick. But, either way, the public deserve to know, and understand fully, what went wrong with this investigation and why.

Oversight of North Yorkshire Police and the Robin Garbutt investigation

Two of the principal reasons that North Yorkshire Police staggers from crisis to crisis, and from one bungled major investigation to another is a complete lack of oversight from those either elected to provide it, or paid from public funds to do the job.

North Yorkshire’s Julia Mulligan is amongst the four worst police and crime commissioners in the country (two of her friends and policing area neighbours, Barry Coppinger and Mark-Burns-Williamson, also feature in the list) providing almost ZERO oversight. Since she was elected in 2012, in almost every serious situation requiring the holding of the chief constable to account, she has failed miserably. It is a startling dereliction of her statutory duty and one of the reasons that grandees in the Conservative Party decided to unceremoniously dump her as their candidate for the next election.

The top brass in NYP just do as they like, knowing that she has neither the basic knowledge of policing (she was a car salesperson and a media strategist before entering full-time politics) or, more crucially, the will to take strong action.

The so-called police watchdog, the Independent Office for Police Conduct (IOPC), is already widely regarded as even worse than its failed and disgraced predecessor, the Independent Police Complaints Commission (IPCC). There has always appeared to be a special relationship between the regional office of the IOPC/IPCC at Wakefield and North Yorkshire Police, whereby even the worst cases of misconduct, or even criminality, are whitewashed away.

Completely divorced from the latest CCRC application, and in order to maintain public confidence in the police, this murder investigation, codenamed Operation Nardoo, really ought to be referred, urgently, to the IOPC by the police commissioner, who should in turn request Her Majesty’s Inspector of Constabulary to recommend an external metropolitan police force, such as Northumbria or West Yorkshire, to thoroughly review the case from start to finish – and re-open it at any time if that is where the evidence takes them.

Screenshot 2020-04-08 at 11.38.36
Interior view of HMP Frankland

When will Robin Garbutt be released from prison

In April 2011, he was sentenced to life imprisonment with a recommendation that he serve not less than 20 years. He will receive credit for the time he spent on remand at HMP Holme Hall between the committal hearing at Northallerton Magistrates Court and the pre-trial review at Teesside Crown Court. There will also be a credit allowed for the time he spent on remand, during the latter stages of the murder trial, after the judge dramatically revoked his bail.

Garbutt would be eligible for parole, therefore, near the end of 2030, under normal circumstances, and provided he had undertaken the necessary rehabilitation programme. The difficulty he faces is that, if he continues to protest his innocence, the parole option falls away and he faces the rest of his life in jail. He would also be denied the opportunity for his detention to be re-classified from the high security Frankland jail to a less rigid regime and, ultimately, an open prison in preparation for a phased release back into society. That prison holds some of the most dangerous offenders in the country.

After a failed criminal court appeal, and three subsequent applications to the CCRC, it is difficult to see how the campaign can sustain if the latest incarnation is also refused. As seems more than likely for all the reasons rehearsed in this article.

Timeline

An at-a-glance timeline of events leading up to the murder and all that happened since can be viewed here.

Footnote

The Robin Garbutt Justice Campaign has been exposed, in the course of this investigation, as more white noise than substance. Jane Metcalfe, in particular, whose true attachment to Robin Garbutt she has yet to reveal, is very active on social media and her output is almost entirely confined, in terms, to ‘There is nothing left of the prosecution case’ (without, it seems, understanding what, precisely, it was); ‘Robin is such a nice man he couldn’t possibly have killed Di’ (every single person at trial spoke well of him so there is some substance to that) and, absurdly, ‘Robin Garbutt has always told the truth‘. The latter is, as Sir Peter Openshaw DL (as he is now styled) and senior Crown Prosecutor, Xanthe Tait, observed from their privileged vantage points, a grotesque misrepresentation: He lied to the police; he lied on oath in court and his evidence before the court was, in other aspects, repeatedly unimpressive. Particularly, the belated embellishment in court of accounts he had had given to the police, previously, over many hours of interviews, regarding Diana calling out to him through a closed door and the description of the weapon.

Those characteristics chime with the campaigners‘ modus operandus of ignoring and/or denigrating anything, or anybody, that doesn’t conform to the Garbutt innocence narrative. Including the author of this piece and the CCRC. This behaviour concerns me, having never encountered anything like it before (read more here). The unpleasantness and ready resort to personal abuse by such as Michael Naughton, a private investigator who describes Robin Garbutt as his client, simply adds an even bigger question mark to their activities. If a group is campaigning against a miscarriage of justice then a foundation stone has to be an open book policy, nothing to hide. There is only one version of the truth.

On another troubling tack, Mark Stilborn publicly claims that the Garbutt case is the worst miscarriage of justice he has ever seen. Which begs the question of how many has he actually studied, with the appropriate rigour and objectivity, and how is he is qualified to judge, in any event? On this website there is a very widely read and shared piece concerning a genuine miscarriage of justice that appears to have passed Mark by; the utterly tragic case of Stefan Kiszko (read in full here). A case that, for many years, has been recognised as one of the worst in criminal justice history. On any independent view, Robin Garbutt’s case comes nowhere close. He is, largely, the author of his own misfortune.

The adverse impact on Diana’s family caused by this style of campaigning, headed of course by her mother, Agnes Gaylor, is incalculable. They thought they had closure at the trial; Agnes is is no doubt, whatsoever, about the verdict that marked her son-in-law as the perpetrator of the murder of her daughter. She said recently that she attended every day at the trial and tried to put herself in the place of a juror with an open, independent mind considering only the evidence she had heard in court. The conclusion was inescapable.

This series of articles, of over 40,000 words, are the fruits of an open-minded, independent investigation. They have been almost entirely grounded in the summing up of the trial, running to 106 pages; the Court of Appeal judgment; and piecing together what key witnesses said, verbatim, from contemporaneous newspapers reports during the trial. The entry point was my unique knowledge of the shortcomings of the police force that investigated this shocking crime. The miscarriage of justice campaign seemed credible enough in the beginning, but that confidence soon ebbed away as straight answers to straight questions were repeatedly ducked.

After spending well over 400 hours on the case since January 2020, my conclusion is that Garbutt did not tell the truth about a number of key issues, the central one being the armed robbery. I cannot be quite so emphatic about whether he actually struck the fatal blows to his wife’s head. But if he didn’t, then he knows who did. Otherwise, why invent the robbery story?

Finally, the justice campaigners, and those that blindly support them without being adjacent to the facts, would do well to better understand that Robin Garbutt is not the victim in this case. That mantle, very tragically, falls to Diana and her close family. Nobody twisted an arm to invent the story of the robbery, without which he would probably not have been convicted of the murder of his wife.

Page last updated: Thurssday 2nd July, 2020 at 0810 hours

Photo Credits: ITV News, THIIS.

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‘That particularly dubious constabulary merits careful investigation’

No-one, over the past six years, has come close to writing more words challenging the conduct of North Yorkshire Police than the author of this piece. On this website alone there are 32 articles, on social media there are thousands of posts. I have taken them, and their disgraced Police and Crime Commissioner, both to county court and information rights tribunal and defeated them at each venue.

A highly attritional relationship

The relationship between investigative journalist and a police force that utterly resents any form of scrutiny is, at all times, highly attritional.  It is in no way an exaggeration to say that I played a not inconsiderable role in the professional demise of NYP’s previous chief constable, the hugely over-rated Dave Jones and the soon to depart, disgraced, and deeply unpleasant PCC, Julia Mulligan.Screenshot 2020-04-04 at 12.50.00

The latter is benefiting from an ill-deserved reprieve, as a result of police and crime commissioner elections being deferred, by a full year, whilst the country deals with the Coronavirus epidemic. She was de-selected as a candidate by her own political party last year and should, in all decency, have resigned there and then. ‘In post, but not in power’ as one of her political opponents succinctly puts it.

Time and again, the reputations of both were trashed as I uncovered, within this police force, and the police commissioner’s office, a trail of mind-boggling incompetence, discredited major criminal investigations, dishonesty, leadership failings, cronyism, profligacy, and persistent, mendacious law breaking – and an unsavoury tendency to use precious police resources and public funds to smear, bully, vex, annoy and harass critics.

The propensity to cover up, rather than address and rectify, the force’s many failings is constant and, at times, seriously shocking. Another very senior NYP officer, Tim Madgwick, was in the vanguard of a significant number of the force’s catastrophes and, most regrettably, it took Jones far too long to work this out. His deputy left the force after 30 years service without any of the fanfare one might usually expect – and no valediction from his boss, or any other senior colleague.

For his last three months at NYP, Madgwick had been removed from operational duties and given a project to occupy his time.

When Madgwick was, quite amazingly, awarded the Queen’s Police Medal (QPM) in 2016, at the height of the scandals and exposés, Jones made one of the most ludicrous assertions in recent policing history: ‘Tim has led teams through some of the most serious incidents North Yorkshire Police has dealt with, in recent years, in an exemplary way‘ (read more here).

In 2012, when Mrs Mulligan was elected as the county’s first ever PCC, Madgwick was acting as chief constable after the departure of the discredited Grahame Maxwell, whose best known line during his tenure as top man in NYP was: “I’m a chief constable, I can do what I want“. This was during an Independent Police Complaints Commission investigation in which he was ultimately found guilty of gross misconduct.

PCC Mulligan, understandably, decided that she wanted a new chief, not steeped in the rotten culture that pervaded within NYP, and, in April 2013, appointed an assistant chief constable from the Police Service of Northern Ireland, whom she described as ‘a tough man for a tough job’. Jones had served with Greater Manchester Police for the first 22 years of his career. Whose record in producing sub-optimal chief constables in other police forces should have sounded loud alarm bells in the ears of the PCC.

Madgwick, having tasted life at the top table, was pushed back down the ranks. Given the opportunity to fight his corner in a court witness box, under cross-examination from me, he chickened out. Aided by a supine tribunal judge who refused my application to serve a witness summons, on the single ground that he had retired from NYP earlier that year, nearly two years after the information rights case in which Madgwick was absolutely central (as Gold Commander) had been launched. It is fair to say he would have faced a struggle extricating himself from the web of deceit that had been woven around the case by the force and two of its lawyers.

Screenshot 2020-04-04 at 12.53.15

Dave Jones was awarded the QPM himself, exactly a year later, but was under a constant barrage of well aimed, and highly justified, criticism from this quarter and, ultimately, the pressure told. At the end of March, 2018 he broke his contract with more than two years to run, did a ‘moonlight flit’ and has never been sighted publicly, since. He claimed that his ‘retirement’ was ‘to spend more time with his family’. The ‘tough man’ had gone soft. Julia Mulligan was spurned, in the end, by the man she both idolised and resolutely defended through some mind-boggling scandals.

Amid this turbulence, it might not be so surprising, therefore, that a well-publicised miscarriage of justice campaign, with NYP at its heart, slipped the net.  In October, 2019 I attended, as an observer, a conference in Liverpool, organised by United Against Injustice. I have known the leading lights in UAI for some years, but this was my first conference visit to their annual gathering. The fact that three representatives from the Criminal Case Review Commission were due to give a presentation, and be available to answer questions afterwards, was at least one compelling reason to justify the journey.

The Melsonby post office murder

One of the cases on the conference agenda was the murder of Diana Garbutt, by her husband, Robin Joseph Garbutt, at the village store and post office they ran in Melsonby, North Yorkshire. He was found guilty after a four week trial at Teesside Crown Court in April, 2011 and sentenced to life imprisonment. The miscarriage of justice campaign was launched soon after. 

Fully committed elsewhere, it was not possible to engage with the Garbutt case at that time. But the publicly accessible documents, which always form the starting point in any investigation I undertake, have since been obtained: The summing up and sentencing remarks at trial; and the Court of Appeal judgment. They provide a shortcut to the best arguments of both sides; the police and Crown Prosecution Service on the one hand and the defendant (appellant) and his legal team on the other. It also gives an experienced reviewer a firm handle on how high the bar is set in order to overturn a conviction.

Most crucially, if the necessary ‘new evidence’, as strictly defined in section 23 (2) of the Criminal Appeal Act, 1995 [read here], is likely to be available. To an extent that it would persuade the law lords that the conviction is ‘unsafe’, and quash it, under powers vested by way of section 2(1)(a) of the same Act.

Following the trial in 2011, the murder conviction was challenged by Robin Garbutt at the Court of Appeal, in May 2012. The appeal was dismissed. Even though new evidence, that the judges agreed had not been available to the defence team at the trial, was before the appellate court. This was in the form of Post Office HQ records between 2004 and 2009. The three law lords ruled that, whilst conceding that Garbutt may have suffered some prejudice at trial, in the event, the irregularities in the drawing of cash from HQ, asserted by a Post Office fraud investigator who gave evidence, could not, on its own, prove theft. It only became important to the police, and later the prosecutors, once it was known that the safe was empty and Garbutt’s explanation was the armed robbery.

The core of the defence submission was that the alleged theft was advanced by the Crown, at trial, as the motive for murder – and that the jury took that route to their guilty verdict. The three senior judges, presided over by Lord Justice Hughes, were satisfied that the jury had rejected the possibility of the robbery having taken place at all, independently of the financial evidence. For that reason they say the conviction is safe. That sets the bar very high in terms of any future appeal that may reach the same court: The task facing Garbutt and his lawyers is now, effectively, to persuade a reviewing body, to the criminal standard, that the alleged armed post office robbery did take place, in order to disturb the Court of Appeal stance. That is one of the inherent iniquities of the modern criminal justice system in England and Wales. As is the perennial reluctance to go against jury findings in the lower court.

The original powers of the Criminal Court of Appeal, under the 1907 Act, gave it an unrestricted power to quash convictions: ‘….if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any grounds there was a miscarriage of justice’ (section 4(1)).

The 1907 Act had no restrictions on the admission of new evidence. Those disappeared after the 1968 revision. A catastrophic sea change for those fighting against wrongful convictions.

The three Garbutt appeals to CCRC

In the Garbutt case, two subsequent rejections of appeals to the Criminal Case Review Commission (CCRC), a product of the 1995 reforms of the Act, did not appear to have received very much publicity at the time. It has not been possible to gain access to the submissions made by the Robin Garbutt team and the consequent decisions by the ‘watchdog’.The CCRC Statement of Reasons are not published, as one might expect, on the Garbutt campaign website (see here). Indeed, the submission of the first appeal, in March 2015, is mentioned, but there is no reference at all to the second. Either the date of its submission or when the decision was subsequently communicated to Robin Garbutt’s legal team, headed by Martin Rackstraw at Bindmans.

The CCRC press office has disclosed that the first appeal was closed in June, 2016 and the sceond appeal, submitted in February, 2017 was closed in July, 2017.

Nevertheless, neither application met the ‘real possibility test’ of overturning the conviction, in the opinion of the Commissioner(s) reviewing the applications, and making the final decisions. As set out on their own website (see here), it is not the function of the CCRC to facilitate a replay of a criminal trial on the basis that the defence evidence was not accepted by the jury and the prosecution evidence was. A point the Robin Garbutt campaigners appear, at all times, slow to accept.

More recently, a third application has been submitted to the CCRC and this has attracted a welter of publicity, both in the press and on regional television in the Yorkshire and Tyne Tees area. This time, it seems, the Garbutt campaign team are much less reticent about the grounds for the appeal. They will be covered in detail in a fourth article in a series of four to be published shortly on this website. The first was published earlier this week (read here). This is the second in the series. The third is a deeper dive into the police failings in the Garbutt investigation.

Briefly, they appear to be another challenge to the time of death; proven flaws in the Post Office computerised accounting system (Horizon); cross contamination of evidence; and ITV news film from the day after murder that shows the murder weapon was not in the place where the police say they found it one day later. 

An independent investigation – a search for the truth

These four articles are viewed through an almost entirely different lens to those appearing elsewhere. These are not of the news item genre, or a cheerleading boost to the justice campaigners. They are an extensive, informed, well-grounded, independent, open-minded search for the truth. Aided in this case by an exceptional knowledge of the police force, and a number of the dramatis personae, involved in the murder and armed robbery investigations.

For reasons that are unclear to me, at least, the Robin Garbutt campaigners have taken exception to this investigation. A curiosity when one considers their frequent, almost monotonous, war cry of ‘Robin has always told the truth‘. If that were the case – and it very plainly isn’t, given what was heard in court – then there should be nothing to hide from a search for the same truth, by a journalist who is adjacent to the criminal justice system every single day:

Who killed Mrs Garbutt and, if there is a killer still on the loose, then press the authorities very hard for the case to be re-opened as a matter of urgency.  Screenshot 2020-03-23 at 16.42.02The murder of 40 year old Diana Garbutt took place on 23rd March 2010. The scene was the living quarters above the post office in Melsonby, in the Richmondshire district of North Yorkshire. The village, with its remarkably low crime rate, lies 1.2 miles to the west of the A1 trunk road and 1.2 miles north of the A66 route towards Penrith in Cumbria.

The well known, and very busy, Scotch Corner interchange is just over 3 miles away.

Diana, brought up in Eggborough near Selby, was struck by three heavy blows from a blunt instrument, a rusty iron bar, according to the evidence heard at the criminal trial the following year. The assailant attacked her to the top of the head and once on each side.

One of the blows was fatal and she was found, wearing only a camisole, some time after the murder, by her husband, with her head in a pool of blood, face down on top of the duvet cover in the spare bedroom. Moments after an alleged armed robbery had taken place in the post office area of the village store.

This is a tape recording of the 999 call made to the police:

That robbery would have been the second, almost identical attack, within 12 months. On 18th March, 2009, just before 8.30am it is said that two hooded young men, aged between 20 and 25 years old, wearing dark clothing, one of them armed with a handgun, threatened Robin Garbutt with the weapon, before making off with more than £10,000 in cash and an A4 book of postage stamps. Garbutt, who made no comment to the local press at any time after the first attack, was said by police to be ‘shocked, but unharmed’.

Detective Inspector Heather Pearson, who led that investigation and features elsewhere in this piece, in the section covering the disastrous Operations Rome and Hyson, said at the time of the robbery: “The area [around the post office] was busy with people driving to work or taking their children to school”.

“We are still appealing to passers-by who possibly noticed suspicious individuals or vehicles in the vicinity of the post office to come forward as a matter of urgency.”

There was no description of the getaway vehicle, or its direction of travel, given by Garbutt in the aftermath of the incident. No sightings of any persons matching the descriptions given by the shopkeeper. He told police that the robbers had entered the post office through the front door of the shop and made their exit the same way, one a short time before the other, after the safe containing an A4 Post Office book of stamps and around £11,000 in cash was emptied. It was said Mrs Garbutt was upstairs at the time and heard nothing. She rarely rose from her bed before 8.30am.

The police made no public appeal regarding the handgun allegedly pointed at Robin Garbutt in the course of that robbery. Or, it seems, gave any warnings not to approach the men if they were suspected of involvement in the Melsonby robbery. An imitation firearm was recovered during what, police said, were extensive enquiries, but not linked to this crime. No one was ever identified as a suspect, or arrested, in connection with the robbery and the incident is still logged by police as an unsolved crime.

Following a general police appeal for information, two days later, it appeared that the trail had gone completely cold and nothing, it seems, was subsequently reported upon, in the local press, until Diana Garbutt’s murder. 

At the murder trial, the issue of whether the 2009 raid actually occurred was not pursued by prosecuting counsel, David Hatton QC, in cross-examination, but, in his closing speech to the jury, he briefly oulined that it may have given Garbutt the idea for the alibi for his wife’s murder, almost exactly a year later. Both on a Tuesday morning, at the same time, at 8.35am just after the school bus had left the village. Two young(ish) robbers, similar physical descriptions, dark clothing, one armed with a handgun. No details of the getaway in either instance. The robbers vanishing into thin air.

A prosecution witness at the murder trial, fraud investigator Andrew Keighley, also gave evidence concerning another similarity: In the months leading up to both reported robberies, Post Office Limited recorded an increase in requests from the Melsonby branch for extra money to be delivered.It may never be known if the requests in 2009 were needed to replace misapproprated cash, as police believe happened in the time leading up to Diana Garbutt’s murder. One of the foundation stones of the investigation that the justice campaigners feel they have since undermined.

‘A comedy of errors’

The court heard of a number of North Yorkshire Police blunders, some of which were described by defence counsel, James Hill QC, as a ‘comedy of errors’ but. of course, not at all funny to the man in the dock. The trial judge, Mr Justice Openshaw said, in turn, that the stewardship of the crime scene demonstrated ‘a regrettable lack of professionalism’.

Briefly, these were or are:

(i) Police claimed a bloodstained pair of boxer shorts found in a rubbish bin was Garbutt’s. They belonged to a neighbour. This ‘evidence’ enabled the police to persuade a Magistrates’ Court to refuse bail and have Garbutt held on remand at Holme Hall prison.

(ii) An iron bar – said to be the murder weapon – has caused consternation both regarding the circumstances of its alleged discovery, two days after the murder, and the results of DNA tests taken from it four months after its discovery. The fact that a police officer’s DNA showed up on the bar was, at first, concealed from Robin Garbutt’s lawyers.

(iii) Strands of hair found on the pillow near an outstretched hand of Diana were said to be ‘lost’ by the police. They never made it to the forensic science labs after being captured on scenes of crime photographs. As a consequence, they were never available for DNA testing. Providing, of course, the follicles were still present.

(iv) DNA tests taken from the pillow are now the subject of further challenge by the Garbutt campaign team over potential cross-contamination with biometric samples taken from the murder weapon . (v) Two bedside lamps were removed by the police from their position within the crime scene, and placed in a cupboard. There were signs of blood spots on at least one of them.

(vi) A bedside mirror and carpet beside the bed were not tested for blood spatter. There was no blood spatter on any of Robin Garbutt’s clothing. 

(vii) The defence team assert that the fish and chip wrappers, containing the remnants of the couple’s supper on the evening before the murder, were the wrong ones. This casts doubt on the analysis of the food decomposition in Diana’s stomach by the police’s chosen expert.

(viii) Questions for Melsonby villagers, interviewed during post-incident house to house enquiries, included confirmation of their hair and eye colour, whether they wore body piercings, or a watch. Householders were also asked ‘intrusive’ questions about neighbours. 

(ix) Detectives issued an appeal regarding owners of white vans, and a number were interviewed and eliminated. But a similar appeal was not made about a metallic or electric blue car seen around the village on the morning of the murder. Or a vehicle seen parked near the entrance to Low Grange Quarry, about a mile from the post office along West Road.

(x) According to CCTV evidence, a vehicle following Robin Garbutt was picked up eight times on the journey to Stockton-on-Tees and back on the night before the murder. The campaign team say that the driver was not traced and the vehicle was sold four days after the murder.

(xi) Police and prosecutors claim that no struggle between Diana and the killer took place before the murder. That is disputed by the Garbutt campaigners who claim that pictures were displaced and bedside lamps were knocked over. They say that Diana with her armed forces background would have fought an attacker.

(xii) A balaclava and ball-bearing handgun were found by Cleveland Police in Thornaby, 19 miles from Melsonby, on 24th March, 2010. The campaigners say there was no attempt to link them forensically to the Garbutt murder.

(xiii) At first, the police accepted the time of death of Diana Garbutt was 6am at the earliest. This stance was changed at trial, which started a year later, based on expert evidence from a forensic archeologist.

(xiv) Neighbour Pauline Dye was allowed to wash her bloodstained hands in the Garbutts’ bathroom sink after handling the body of Mrs Garbutt. This is, on any view, a truly shocking catalogue of serious investigative failures and is much more extensively reviewed in a seperate analyis on this website (read in full here).

Confirmation bias

In this light, Robin Garbutt can safely say that he suffered prejudice at the criminal trial as a result. In that sense, there is merit in the argument of his campaign team that there has been, potentially, a miscarriage of justice. But not an unsafe conviction.Without the armed robbery story, Garbutt would, very likely, NOT have been convicted of the murder. Indeed, the police and prosecutors, absent of a confession, may well have struggled to get even a charge against him, let alone a trial. There was simply no evidence linking him to it, forensic or otherwise.

A well known retired senior police officer and commended detective, who spent his entire career with a large metropolitan police force, told me that the smaller county forces didn’t have the well-oiled machinery and the know-how of their big city cousins to roll out an effective, efficient investigation in the ‘golden hours’ just after a serious crime had been committed. They often didn’t have the required personnel, either. The cream of the crop tended to be skimmed off by the larger forces. Another friend, of even higher rank, was actually brought up in Melsonby village. He is also scathing of the abilities, of what was his local police force, to conduct major investigations.

Defence barrister, James Hill QC, put it this way to the jury in his closing speech: “You can’t just cherry-pick the evidence. You can’t just ignore the parts of the evidence that you don’t like, in order to put forward a theory. I’m going to suggest that the prosecution case is nothing more than that – a theory. Ever since, they’ve been trying to make that evidence fit that theory.”

North Yorkshire Police had 30 officers assigned to the murder investigation, closed off the village, and set up a mobile facility in Moor Road, adjacent to the ginnel at the rear of the village shop premises. But, almost from the moment the first officer arriving on the scene, Traffic Constable Chris Graham-Marlow, had spoken to the paramedic, Michael Whitaker, the husband was the main suspect and it seems, particularly to the Garbutt campaign team, that police activity only concerned their man – and focused on evidence that supported their hypothesis and ignored anything that went against it. A well-discussed policing phenomenon of confirmation bias.

That bias, and the narrow, rigid mindset and weak organisational culture that accompanies it, is a recurring feature of almost every high profile NYP investigation – and has led to some tragic failures, most notably during Operation Cabin, the first, bungled, investigation into the disappearance of Claudia Lawrence.

Nevertheless, after having heard ample evidence of the poor police investigation, the rubbishing of it by the defence barrister and the more restrained, but damning, criticism  from the trial judge, the jury found Robin Garbutt guilty of the murder of his wife.

In a piece published earlier this week (read in full here) it sets out in considerable detail the two crucial decisions that the twelve members of the panel had to decide. Namely the time of death and whether, in fact, there was truth in the assertion, by Robin Garbutt, that an armed robbery had taken place moments before he had discovered the bloodied body of his wife. The article, in which is embedded a police film of Garbutt’s first account of the robbery, is said to be a compelling read.

More neutrally, if the earlier 2009 robbery was also a fake, it raises the probability that, had North Yorkshire Police uncovered this at the time, a murder could have been prevented. That is the view of Diana’s mother, 70 year old Agnes Gaylor, who sat through every hearing day of the trial at Teesside Crown Court, and is convinced of Robin Garbutt’s guilt.

Nevertheless, as a matter of legal correctness, the presumption of his innocence must prevail over the 2009 incident. In fairness to the police, and in the absence of CCTV nearby, proving the robbery didn’t take place would be next to impossible. Nevertheless, in policing circles, it would have been surprising if Robin Garbutt’s ‘card hadn’t been marked’ as the local saying goes: The failure to activate the silent alarm and the complete absence of any sightings of robbers or getaway vehicle, in the busiest part of the day in this village, would, doubtless, have troubled them.

Mrs Gaylor was interviewed, very briefly, by the media, after the Garbutt sentencing and alongside Detective Constable John Bosomworth (watch short video clip here). Based with Northallerton CID, DC Bosomworth read from a statement prepared on behalf of the family in which the murder investigation was warmly praised, particularly for its ‘care and compassion’.

This is a recurring NYP trait. The rest of the country knows that this was a quite appalling investigation from beginning to end, and still with huge question marks against it, and their first, and persistently irritating, instinct is self-praise.

More recently and, perhaps, less surprisingly Agnes told ITV News: “I attended every day of the trial and after listening to every word said and with great effort to put myself mentally in the jury box, with an open mind, I am beyond confident that Mr Garbutt is in the right place. I understand why his family and friends would love to see him freed, but all I hear is – he’s such a nice man he couldn’t possibly have done such a thing. But nice men, sadly, do”.

But this wasn’t the only police investigation in which DC Bosomworth was centrally involved around that time and his underperforming NYP colleagues were later the subject of fierce, and highly justified, criticism by those pursued by them. As in the Garbutt case (criticised by the trial judge), in this case the force was criticised by a senior officer from another constabulary, appointed by the police watchdog, to assess an appeal into a quite disgraceful internal investigation by NYP (read press report in full here).

That case involved a mother being falsely, and, on the evidence, perversely and irrationally accused of the attempted murder of her own disabled young daughter. None of the officers concerned in this case was properly held to account.

As far as Operation Nardoo is concerned, the police codename for the calamitous Garbutt investigation, a review into the failings of North Yorkshire Police handling of the murder probe was promised in a statement to the local press, shortly after the trial concluded. There is no trace of such an inquiry ever taking place and, as a consequence, the force has been tasked with providing details, by way of a freedom of information request (read here). The Gold Commander for Nardoo was ACC Tim Madgwick, whose command team portfolio at the time included criminal investigations. A bitter and protracted battle is expected with the police force to extract that information and place it in the public domain.

Madgwick was also Gold on Operation Cabin, later reviewed internally by NYP in an operation codenamed Essence, which highlighted some of the failings of the original investigation into the disappearance of Claudia Lawrence after leaving her York home to travel to work at the city’s university. No arrests were made during this investigation. An inaccurate photograph of Claudia was issued by the police at the outset. Failure to establish basic facts such as distances and timings. Failure to preserve Claudia’s home as a crime scene. Failure to eliminate a suspect vehicle by using even the most rudimentary investigative techniques. Obsession with a theory based around Claudia’s love life. Bull in a china shop approach to locals in the area where Claudia lived. Disaffecting members of Claudia’s family. 

The 2009 reported armed robbery at Melsonby post office took place on the last day that Claudia was seen alive. The pre-occupation with her disappearance, reported by her father, Peter, on 20th March, 2009 may well have resulted in the investigation into the alleged robbery fizzling out quickly.

Operations Rome and Hyson (one flowed into the other) feature extensively on this website as one of the biggest investigation failures in police service history. Yet again, Madgwick was at its very heart as Gold Commander of Rome, upon which almost £1 million of public money was squandered in a farcical, meandering, highly partial investigation into what they resolutely maintain concerned ‘alleged harassment’, that lasted 7 years and resulted in not one single arrest. He remained as the controlling mind, and chief ‘cover-upper’ of Hyson, even though his subordinate, ACC Paul Kennedy, was nominally Gold. Heather Pearson played a signifant part in that investigation, as Senior Investigating Officer, at least for part of the time that the investigation ran, exceeding her powers and exhibiting an alarmingly closed mind when ordering the arrest of a citizen journalist, Timothy Hicks, over his criticism of the force. Tim is a professional man, a chartered accountant and certified fraud examiner, of exemplary character. His detention at a York police station, followed by pointless and utterly irrelevant questioning, had an Orwellian look to it.

Rome ran from 2008 until 2014, Hyson 2014 until 2016. Lord Maginnis of Drumglass was refused a meeting with Theresa May, Home Secretary at the time, to raise grave concerns over Operation Rome and the way North Yorkshire Police was running it. She refused, so he raised the matter in Parliament. He told those assembled on the red benches: ‘That particularly dubious constabulary merits careful investigation’. That startling submission was on 15th May 2012, less than a month after Robin Garbutt was sent to prison. It is a quote, entirely factual, that police force and its senior leaders came to resent and detest.

The Private Eye magazine eventually featured the scandal in August, 2016 with a near full page article headlined ‘North Yorkshire Boors‘. It signalled, thankfully, the beginning of the end for Tim Madgwick. Who, curiously, has lived around the Easingwold area (the names of two of the villages are known, but it simply would not be right to publish them) since he moved north to join NYP from his Hampshire origins; the same area of York in which Robin Garbutt grew up and lived in, Tholthorpe and Huby respectively, before he and Diana bought the post office in Melsonby. 

This is far from an exhaustive list of NYP failures; in my time spent scrutising the force they run well into double figures. Including serious allegations, supported by employment tribunal findings, of being a racist and sexist organisaion. But it gives the reader a flavour of just how low the ethical and professional bar is set in this police force.

Add to that a breathtaking level of incompetence, layered over with ingrained, overbearing arrogance and superiority, that seeps into almost every business area, and the scale of the problems within this organisation begins to crystallise. It is almost certain that justice campaigners such as the Garbutt team, and their legal team, will recognise these unpleasant, and wholly unacceptable traits, as they have battled to uncover the truth behind a grotesquely failed Operation Nardoo investigation.

Robin Garbutt campaigners - ITV package

Obtaining disclosure of relevant materials will also be a constant thorn in the side of the campaigners, led by Jane Metcalfe (on the left in above pic), his sister Sallie Wood and brother-in-law, Mark Stilborn, as it is for anyone who deals with the force on a professional level, such as lawyers and journalists.

Best exemplified by this case, wherein the Lord Chief Justice was blistering in his condemnation of, amongst others, the Chief Constable of North Yorkshire Police. Sir John Thomas described the force’s conduct as ‘reprehensible’. At one point, Dave Jones was summoned to appear before the law lords in London. The full handed down judgment can be read here. The only officer ever held to account was an inexperienced detective constable, recently posted in a department that was widely known for its failings and, of course, in true NYP style, the decision makers and top brass escaped any censure, whatsoever.

So, we come to the key questions: 

~ Did Robin Garbutt get a fair trial in April, 2011 at Teesside Crown Court?Emphatically not, in my submission. A police investigation so inept it borders on the criminally negligent; a senior leadership and detective mindset mired in confirmation bias: a threadbare prosecution absent of anything other than circumstantial evidence and accompanied by the almost standard disclosure failings that, seemingly, weave through every operation conducted by North Yorkshire Police.

~ Did the jury come to the right verdict?

It should first be said that I am not an advocate of majority verdicts. Until 1967, a jury had to reach a unanimous finding, ‘beyond reasonable doubt’. Now a 10-2 or 9-1 verdict, where the jury is ‘sure’ of the defendant(s) guilt is within the law (Juries Act, 1974). On the evidence heard in the Garbutt trial, summed up by an experienced, senior judge and properly directed on the law, it was not surprising to the neutral observer that they concluded Garbutt was guilty of the murder of his wife. Such a conclusion must have embraced at least one of the two main planks of the prosecution case: (i) The robbery at the post office did not take place (ii) The time of the murder was before Robin Garbutt served his first customer in the shop at around 5.15am that morning (according to the till roll).

~ Was the Court of Appeal wrong to dismiss Robin Garbutt’s claims of a miscarriage of justice at the hearing in May 2012?

For my own part, every judgment that this court delivers is read, as part of learning how to understand and assess other cases. I have also been in the press seats at the Royal Courts of Justice to hear an appeal in which I was assisting the person convicted of murder, and his family, and, in fact, made a successful oral application to Lord Justice Davies, from the press seats, to live tweet those proceedings. From that informed perspective, the refusal to quash the Garbutt conviction was routine, given what was before the court. The defence team, still led by James Hill QC and praised by the law lords for their skilful submissions, had a mistaken grasp of the very probable route to verdict taken by the jury. Their majority decision says the robbery didn’t take place and, on the only alternative put to them by the prosecution, Robin was found to have killed Diana. That is the legal position and, as I say to every single person who seeks out my view, the appellate courts are almost always where law is decided, not justice. That has been the position, for better or worse, since 1968. 

~ Will the Criminal Case Review Commission refer the case back to the Court of Appeal after the third application by Robin Garbutt?

The conclusion reached on that discussion is reserved for the fourth article in this series, in which I set out the grounds, as I know them, and my reasoned views as to if, and why, they do, or not have merit. It would take just one compelling ground for a referral out of the four believed have been advanced by his legal team for the CCRC to make the prized referral.

Timeline 

An at-a-glance timeline of events leading up to the murder and all that happened since can be viewed here.

The Robin Garbutt justice campaigners were contacted for comment. They did not respond. 

Page last updated: Thursday 11th June, 2020 at 2035 hours

Photo Credits: ITV News, Press Association, North Yorkshire Police, North Yorks Enquirer

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