Democracy dies another death

Just a few short weeks after publication of one of the most damning civil court judgments I’ve read in recent times, the council at the centre of that legal storm are in the news again: For all the wrong reasons.

North Yorkshire County Council, based in sleepy Northallerton , is the host Authority for the North Yorkshire Police and Crime Scrutiny Panel. It receives a substantial Home Office grant for its trouble.

jobs_workingforus
Constructed in the early 1900’s by architect Walter Brierley, the Grade 2 listed County Hall at Northallerton has, also, previously seen service as a Red Cross hospital and as a temporary wartime home for the local grammar school.

The senior officer in charge of the Panel Secretariat is Barry Khan, a qualified solicitor who also fulfils other roles within the county council: Assistant Chief Executive; Head of Legal and Democratic Services; and Monitoring Officer. He moved to North Yorkshire in 2014 after previously working for Stockport Council.

Khan’s short incumbency at Northallerton has not been without controversy. Apart from the desperately shocking Jeanine Blamires case [1], there has been an alleged ‘stonewalling’ over child safeguarding failures in at least one school in the quaint seaside town of Whitby.

His previous role as Solicitor and Monitoring Officer at Stockport Borough Council was not plain sailing, either. Most notably, over peaceful protester Michael Parnell, who died following a period where he had been repeatedly arrested, detained but was, eventually, cleared after a three day Crown court trial [2].

Khan’s role in the mistreatment of Parnell, particularly in securing a restraining order against Mr Parnell to prevent him protesting, has not been subject to complaint or application, as far as can be traced. But Mr Parnell’s supporters, including democracy campaigner, Sheila Oliver, continue to express disquiet over the council’s contribution to the illness that led to his death. On any view, it is a troubling case.

In my own sporadic, direct dealings with Khan there have been no notable communication issues. But, that is definitely not the case with the staff deployed beneath him in the Secretariat hierarchy:

I have been lied to by Ray Busby (for which I received an apology); addressed inappropriately by the same officer (for which I received another apology); had personal data released onto a public forum by Diane Parsons (a matter denied by the Secretariat and currently under investigation by the Information Commissioner) and treated to a display of ignorance and stubbornness over the Freedom of Information Act (FOIA), 2000, by the same officer, that simply beggars belief. To the extent that it would be a relatively easy step, given the history, to infer that the intention of the Secretariat was to vex, annoy and harass.

That history also includes a complaint that I made against Julia Mulligan, in July 2015, that concerned the failure of the Police Commissioner to hold the Chief Constable, Dave Jones, to account over a number of issues that included inter alia:

The £1 million funding of failed harassment prosecutions and a civil claim mounted by four very senior police officers and a political crony, Jane Kenyon [2a]; Poor communication/engagement: 101 service; Non-compliant Freedom of Information Act finalisations; Failure to publish Decision Notices:

The complaints were not upheld by the Panel, despite subsequent events proving, beyond doubt, that each one of those matters was, in fact, validly raised. In most cases, accompanied by seriously adverse publicity for the Commissioner, or the force. Or both.

The fact that I succeeded in a county court claim against the Police Commissioner, in February 2017, over data protection breach, has never appeared in Panel minutes either. Neither has reference to the £20,000 plus of public funds expended on defending that claim, and a parallel one against the Chief Constable.

More recent Panel failings include the chief executive farrago. Again, costing precept payers a fortune (latest estimates suggest a figure close to £80,000). Substantive post holder, Joanna Carter, is believed not to have been in post since very early in 2016. There have been two temporary ‘replacements’ variously imported from other PCC’s as acting, or interim, chief executive. Both Simon Dennis and Fraser Sampson, it is fair to say, arrived on the scene with ‘baggage’. Sampson and I clashed, repeatedly, during his tenure at, firstly, the disgraced West Yorkshire Police Authority and, later, the Office of the Police and Commissioner for West Yorkshire.

All questions to the North Yorkshire Commissioner’s office, concerning the absence of Ms Carter, are resolutely stonewalled: Even when they are legally obliged to provide answers, by way of an FOIA request [2b]. An insider has said that questions put by the Panel to the Commissioner, and Sampson, about Ms Carter’s unavailability have been fobbed off (unreported in the minutes it must be said). Another well-placed source says that Ms Carter signed off ill with stress, as a result of a series of disagreements with her ‘high-handed’ employer.

With Sampson now in post until 2019, the presumption is that Joanna Carter is not returning and, quite possibly, in legal dispute with Julia Mulligan. If this is the case, and absence of hard information only fuels speculation, then either a compromise agreement, or Tribunal proceedings, is going to cost the precept payer a mighty sum. Which would, of course, explain the wall of silence around the issue.

These are precisely the issues over which the Panel should be holding the PCC to account but, yet again, the meeting minutes (and Decision Notice) are silent on the fate of Ms Carter, a statutory appointment, and, as such, open to particular scrutiny.

It was a similar situation over the appointment of Deputy Police and Crime Commissioner, Will Naylor. It is established, beyond doubt, that Naylor embroidered his employment history and had little, or no, relevant experience in taking on the role. Other than as a Conservative Party policy wonk [3].

There were also serious concerns about the recruitment process for the Deputy role, which had all the appearance of a well-orchestrated sham. The upshot was that, in a rare flexing of scrutiny muscle, the Panel decided that the confirmation of Naylor’s appointment was conditional of sight of a personal development plan, and a six month trial period, after which he would appear before the Panel. Which all sounded fine, until Mrs Mulligan unilaterally decided that the plan wouldn’t be produced after all – and Naylor didn’t appear before the Panel as scheduled to have his capabilities, qualifications, performance further examined [4].

Another scandal to surface very recently, unscrutinised, is the dramatic increase in office costs of the profligate PCC. In one year, ending March 2017, they have risen from £741,000 to £908,000. Over 20%. Which does not include the legal costs referred to above, which are tucked away elsewhere in the accounts. This flies in the face of what Mrs Mulligan told the Panel when the decision to have a Deputy was thrust upon them, unannounced, last September. There has been nothing, whatsoever, noted in the Panel meeting minutes, or any warning given by the PCC, that such a steep rise was on the cards.

NYPCC office costs 2016-17

But the most recent scrutiny fail concerns a remarkable refusal to accept a public question, from myself, at the Panel meeting which took place on 20th July, 2017. This was the question exactly as framed:

Freedom of Information Act compliance
 
(A) Statement
In July and September 2015, in response to a complaint and a public question made by me, these were amongst the submissions made by Joanna Carter, the chief executive at the time.
(i) At page 18 of the complaint response it was said:
“The Commissioner would agree that the FOI performance could improve, and that the quality of answers given on occasion could also improve….”
(ii) At page of the PQT response it was said:
“All FOIA’s, including any relating to this issue (Operations Rome and Hyson) are routinely published on the NYP/NYPCC website”.
Since those answers were provided,
(i) It is evident that not all requests relating to Operation Hyson and Rome were not published on the force disclosure log. Indeed, it is the regular practice of the force to conceal requests that may be perceived as causing reputational damage.
(iv) The force has refused an information request from me to establish the extent of the issue. A matter presently before the Information Commissioner (see attached WhatDoTheyKnow file).
(v) FOIA performance has worsened. To the extent that over 500 requests per annum are finalised unlawfully (See attached FOIA finalisation). That is a quantitative analysis, the figure would be much higher addressed qualitatively. Poor quality finalisations still feature regularly.
(vi) The Information Commissioner has indicated within Tribunal proceedings that the Civil Disclosure Unit are now under a monitoring regime as a result of poor performance (I have requested disclosure from them of more complete details).
(vii) If the oral and written submissions of the police lawyer running the CDU, to both the County Court and the First Tier Tibunal, are to be believed there are now less staff deployed in that Unit, than two years ago.
(viii) The Commissioner and the Chief Constable are both spending substantial amounts of public funds defending civil claims and Tribunal proceedings concerning FOIA where, on their face, the prime motivation is to avoid scrutiny and reputational harm, rather than the preservation of information rights. In the past year that figure, in my own knowledge exceeds £30,000 with the potential for that figure to double in the present financial year.
(B) Question
What steps has the Commissioner taken to:
(i)   Apprise herself of the extent of the non-compliance issues extant within the Civil Discloure Unit?
(ii)  Hold the Chief Constable to account over these long-term, repeated failings to comply with the law and use of public funds?
(iii) Keep the Panel informed?

Firstly, the email sending the question and supporting documents was intercepted and quarantined.

The Panel Secretariat, in the form of the aforementioned Diane Parsons, came back the following day and refused permission to ask the question. She said: “Having consulted the Panel Chair on your submission, I regret that the Panel are therefore unable to take your questions at the meeting this week.  However, I have passed your correspondence and attachments to the OPCC so that they are aware of the concerns you have raised“.

The rationale appeared to be that these were not matters with which the Scrutiny Panel need concern themselves: “To clarify, the purpose of PQT is to enable members of the public who live, work or study in North Yorkshire to engage directly with the Panel and pose questions on its remit and functions.  I have attached, if helpful, a copy of the Panel’s guidelines on PQT.  Any statements or concerns which you feel require the attention of the Commissioner would need to be directed through her office“.

The email from Ms Parsons, unusually, was comprised of three different fonts, and had obviously passed through a number of hands before she was elected as message bearer. The unseen hand of Barry Khan was, no doubt, part of the behind-the-scenes subterfuge.

As a card-carrying member of the press, the residency issue is a non-starter; I have previously posed a question to the same Panel: complaints against the PCC have also been considered by the same Panel; and on any reasonable, independent view the questions I posed met the Panels own guidelines or, even if the Panel felt they did not, modification was a very simple process.

But that, plainly, did not suit the Panel, or its Secretariat’s, purpose. To conceal their own failings as a scrutiny body, yet again, was clearly paramount. There was also what some might view as an unattractive element of childishness implicit within the response – and the intercepting of the email even before it reached the intended recipient. Which rather suggests that North Yorkshire County Council are interfering with my communications.

Following the re-direction of the public questions to the Police Commissioner’s office there has been a deathly silence. Which has also been the case from Deputy Chair of the Panel, Ashley Mason, who was passed full details of the questions prior to the Panel meeting taking place, by a well-known local democracy campaigner. Cllr Mason was rather more loquacious when, as if on cue, another unmitigated 101 disaster befell NYP during the first week of August, 2017 [4a].

This is a story that has some way to run yet as more information is passed to me by a source close to the Panel. This includes the claim, surprising to me at least, that the Panel chair, Cllr Carl Les, and the PCC do not see eye to eye, and that at least one conscripted Panel Member is very reluctant to take on her duties, having been pressed into service following the abrupt departure of another Member last year. A situation that chimes with a number of senior Conservative figures turning on Mrs Mulligan over her ‘crazy’ plans to take control of the North Yorkshire fire service [5].

There are also, it is said, serious frustrations at the PCC’s frequent refusal to provide requested documents, information to the Panel Secretariat. Again, a matter unreported in the minutes. There is also another controversy concerning the minutes as they are sometimes not, according to my source, a true record of what actually transpired at the Panel meetings. That would fit, certainly, with the known modus operandum of Fraser Sampson.

North Yorkshire Police and Crime Panel is, obviously, not a happy ship and needs an rapid overhaul, tip to stern.

The Police Commissioner’s office and the Panel Secretariat have both been approached for comment. Neither acknowledged the request.

Page last updated: Wednesday 2nd August, 2017 at 1745hrs

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.

[1] Leeds County Court, 21st June, 2017: Judgment of District Judge Joanna Geddes in Jeanine Blamires -v- Local Government Ombudsman

[2] Manchester Evening News, 19th September, 2013: ‘Protester who held three year vigil outside Stockport Town Hall dies

[3] Neil Wilby, 22nd October, 2016: ‘Where there’s a Will there’s a way

[4] Neil Wilby, 23rd November, 2016: ‘Pick of the crop’

[4a] York Press: 4th August, 2017: Police apologise after telling public NOT to call 101

[5] Harrogate Advertiser, 25th July, 2017: ‘Police tsar plan for fire service branded ‘crazy”

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

Much ado about nothing?

An employment dispute that began in a glass fronted office block close to the Meadowhall Shopping Centre in Sheffield, was, eventually, played out in the hallowed halls of the Royal Courts of Justice on London’s Strand eleven months later.

It was no ordinary job, however, and the offices were those shared by the South Yorkshire Police (SYP) and its Police and Crime Commissioner (PCC). The Chief Constable of the beleaguered force was David Crompton and he was suspended from duty, by the PCC, Dr Alan Billings, on the afternoon of 27th April, 2016.

crompton-and-billings
South Yorkshire Police and Crime Commissioner, Dr Alan Billings, endorses his chief constable, David Crompton, within minutes of being elected to office in October, 2013.

Crompton ultimately resigned on 29th September, 2016 at the end of a process empowered by section 38 of the Police and Social Responsibility Act, 2011 (the Act).

At the time of his suspension, Crompton had already set his date for retirement from the force – which was planned to be 30th November, 2016.

A rolled-up permission and substantive judicial review hearing opened on 28th March, 2017 before Lady Justice Sharp and Mr Justice Garnham. David Crompton is the Claimant, the PCC, Dr Alan Billings, is Defendant and there are two interested parties: Her Majesty’s Chief Inspector of Constabulary (HMCIC), Sir Thomas Winsor, and the Police and Crime Scrutiny Panel for South Yorkshire (PCP).

Dr Billings was present throughout the hearing, as was Sir Thomas and David Crompton. The latter was accompanied by his wife and daughter, together with retired Lincolnshire Police chief constable, Neil Rhodes, who was there in his capacity as Chief Police Officers Staff Association (CPOSA) ‘friend’. CPOSA are funding the claim through a contributory insurance scheme.

Rhodes is no stranger to these type of proceedings and successfully overturned a controversial suspension by the then Lincolnshire PCC, Alan Hardwick, in 2013.

Submissions were heard, for most of the first day of the hearing, from counsel for the claimant and HMCIC (Hugh Davies QC and Clive Sheldon QC respectively) which amounted to much the same thing: The decision of the PCC was taken in haste, not properly thought through, was defective in process, failed to apply due weight to HMCIC’s findings and undertaken with a political, rather than a policing, agenda.

Further, the PCC chose to ignore the recommendation of HMCIC which, it was advanced, on his behalf, a considered, objective and expert review of the section 38 process that the PCC had set in train.

As such, the decision by the PCC to, effectively, dismiss the chief constable was born of ‘political imperative rather than objectivity’, ‘disproportionate‘ and ‘irrational’. He had also taken account of ‘irrelevant considerations‘ when later justifying the decision. It was further argued that the decision under challenge infringed on David Crompton’s Article 8 convention rights as it impacted on his family and future employability. Mr Davies had earlier described him as ‘a highly effective chief constable‘.

There were no allegations made by the PCC, against his chief constable, of breaches of Standards of Professional Behaviour which apply to all police officers.

A declaration by the court that the actions of the PCC were unlawful is sought by the claimant. Which, it is said, would go some way to restoring his ‘damaged reputation‘ [1].

In the submission of Mr Sheldon, the events that led to the suspension centred on the jury determinations at the new Hillsborough inquests – and two SYP press releases that followed. The second press release included the words ‘other contributory factors‘ as causes of blame for the stadium disaster. Much attention is focused on the meaning and intent behind those words. He said, with some force, that accountability – as called for by Andy Burnham – did not necessarily mean that ‘heads should roll‘.

When asked (not for the first time) by Lady Justice Sharp where – with a wide discretion of decision making – the boundaries were, Mr Sheldon submitted that ‘the correct test was the old-fashioned Wednesbury approach on reasonableness‘. There had, he said, been no damage to effectiveness and efficiency of the force as a result of the chief constable’s leadership, and common law recognises that the Wednesbury test is dependent in each case on the facts. Mr Sheldon also stated, with some emphasis, that ‘There was no loss of public confidence in South Yorkshire Police‘.

Although not a party to proceedings, the name of Andy Burnham, MP and Shadow Home Secretary, was mentioned more than any other by counsel. He had called for accountability from SYP following the findings of the new Hillsborough inquests. According to counsel, the chief constable was the main target of criticism. The significance of a telephone call from a male bereaved family member, and prominent Hillsborough campaigner, to Dr Billings, just ten minutes before the PCC suspended his chief constable, was also raised in court.

The advocate for the PCP, Adrian Phillips, made brief submissions to the effect that the Panel saw their role as peripheral to these proceedings, they were neutral on its outcome and, accordingly, their decision should not fall for scrutiny by this court. He also, helpfully, explained to the court the statutory composition of a scrutiny panel and how it came to be, in an area such as South Yorkshire, that the Labour Party would be almost entirely dominant. He rejected the proposition, advanced by the claimant, that the Panel’s decision was born of political bias.

Jonathan Swift QC spoke eloquently, and persuasively, on behalf the PCC. The main thrust of his submissions, which took up almost the entirety of the second day of the hearing, was that the decision taken by Dr Billings (to conclude the section 38 process by asking CC Crompton to resign) was one that was reasonably open to him to make, by way of his statutory responsibilty to hold the chief constable to account under section 1 of the Act. He also maintained that all necessary processes had been correctly followed, including the required consultations with HMCIC and the PCP.

In rejecting one of the claimant’s (and HMCIC’s) main thrusts of argument, Mr Swift said that their was no statutory requirement for the PCC to give special weight to the views of Sir Thomas. He had considered those carefully and, in his discretion, had rejected those views.

He also invited the court to view the decision to suspend the chief constable through a wider lens, that brought into view an increasing discontent with the running of the police force in South Yorkshire. Particularly, in the months prior to the announcement of the Hillsborough inquest verdicts. Most notably, with the ongoing controversy of the handling of the aftermath of the Jay Report.

It was not, Mr Swift advanced, a spur of the moment decision, triggered by events in Parliament during an exchange between Mr Burnham and the then Home Secretary, Theresa May.

There were also submissions from Mr Swift concerning both the timeliness and merits of three of the decisions challenged by the claimant:

(i) To suspend the chief constable

(ii) To reject the advice of HMCIC and continue with the section 38 process

(iii) To refer the matter to the PCP

In respect of the remaining decision – to finally ask the chief constable to resign –  Mr Swift agreed that permission for judicial review should be given to the claimant as the matter was, quite plainly, arguable. But, at the same time, invited the court to dismiss this fourth ground on its merits.

Mr Swift curtly also dismissed the alleged breach of Article 8 as being without merit.

At the conclusion of the hearing, Lady Justice Sharp told the court that judgment will be reserved on both the permission and substantive issues. The judgment is unlikely to be handed down before May 2017.

It is estimated that the two day hearing, with four legal teams representing the various parties, will end up costing either David Crompton’s insurers, or the South Yorkshire taxpayer, in the order of £150,000. And for what, the reader might legitimately ask? It seems, on the face of the submissions, that the claim was brought with two purposes in mind: To restore the reputation of David Crompton (there is no financial remedy either sought, or available, via this legal process) and to give HMCIC the final word in future section 38 processes as to whether a chief constable is dismissed, or not.

A preview of the court case, first published in January, 2017, in which the arguments of all parties is examined in some detail can be read on this website: ‘Bad on their merits‘ [2]

Page last updated Saturday 8th March, 2017 at 2055hrs

[1] Neil Wilby May 2015 – David Crompton: The South Yorkshire Years

 

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.

Copyright: Neil Wilby 2015-2017. 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.

 

‘Bad on their merits’

In April 2012, David Crompton stepped out of the shadow of Sir Norman Bettison and took up the post of chief constable of South Yorkshire Police (SYP). It is a matter of public record that, after being rejected in the first round of applications, and interviews, by the South Yorkshire Police Authority, he walked into the job because no-one else wanted it when the post was, subsequently, re-advertised. The only other officer shortlisted was Stuart Hyde, who took up a post with Cumbria Police instead.

David Crompton had been a controversial deputy chief of troubled West Yorkshire Police (WYP) since 2006 – and the much criticised Bettison resigned from that force in October, 2012 when faced with gross misconduct charges. Hyde, incidentally, was also a former WYP senior officer, having served there between 1997 and 2003. He later spent a lengthy period suspended whilst serving at Cumbria. An investigation report did find breaches of procedure, but Hyde was cleared of gross misconduct, misconduct and criminality shortly before retiring.

The Crompton police career had started in 1982 with another perpetually disgraced force, Greater Manchester Police, following the footsteps of his father, Sir Dan Crompton [1].

That career ended ignominously with his forced resignation from SYP on 29th September, 2016 – and marked the end of a turbulent period during which he was never far from heated debate.

Some of the low spots being his responses to the publication of the Hillsborough Independent Panel report in September 2012; the publication of the Jay Report in August 2014 into the extent and nature of decades of child sexual exploitation in Rotherham; the Cliff Richard home search debacle earlier in the same month and the appearance before a Parliamentary committee that followed; and his response to the IPCC’s June 2015 publication of their scoping report into criminality and misconduct during the infamous Battle of Orgreave.

But his nemesis was, finally, to be the verdicts of the jury at the new Hillsborough inquests nearly four years after the Panel’s findings. Notably, that the fans of Liverpool Football Club bore no responsibility for the death of 96 of their fellow supporters in the stadium disaster on 15th April, 1989. That flew in the face of Crompton’s own entrenched views on the matter, as revealed in emails sent by him, and subsequently published in the national press, following a freedom of information request made by fellow investigative journalist, Jonathan Corke.

The controversy over Crompton’s reaction to the inquests verdicts – and two press statements he made on successive days in April 2016 – is still rumbling on and is set to be played out in the hallowed halls of the Royal Courts of Justice (RCJ) on London’s Strand. A two day hearing is listed for 28th and 29th March, 2017.

On 7th October, 2016 a judicial review (JR) permission application was filed at RCJ, on behalf of David Crompton, by Adam Chapman a former Treasury solicitor who is now a partner and Head of Public Law at Kingsley Napley (this firm also represented Bettison at the time of his resignation and for a period afterwards). The documents in support of the claim form run to over 1,000 pages and challenge four decisions made by South Yorkshire Police and Crime Commissioner (PCC), Dr Alan Billings under Section 38 of the Police Reform and Social Responsibility Act, 2011 and, by which, the PCC first suspended his chief constable and then, ultimately, required him to resign.

crompton-and-billings
David Crompton with Dr Alan Billings following his election to PCC in October, 2014. Within minutes of being elected Billings was praising his chief constable in a BBC interview.     Photo credit: BBC

The statement of grounds has been drafted by well known police regulatory lawyer, Hugh Davies QC, and they take issue with the rationality and proportionality of the PCC’s decisions that, sequentially, led to the final sanction of, effectively, dismissal from his chief constable post. It also sets out four considerations that the claimant contends to be irrelevant in the decision making process: The conduct of the new Hillsborough inquests; the College of Policing led Peer Review conducted into the state of SYP after Crompton’s suspension, child sexual exploitation and the possible investigation into Orgreave.

Declaratory relief and/or a quashing order over the four decisions is sought, together with costs of the action.

It is set out that declaratory relief in this action would go some way to restoring the ‘grossly unfair’ destruction of the reputation of David Crompton, after what Davies says is some 30 years police service (it appears, by my reckoning, that he has over 34). The pleadings are, curiously, silent over the number of other high profile and well rehearsed failings that have, cumulatively, led to the demolition of his good standing as a police leader. They do advance the oblique proposition, however, that the PCC’s actions may have been influenced by ‘ill-informed public opinion‘.

The claim is heavily dependent on three documents produced by Her Majesty’s Chief Inspector of Constabulary, Sir Thomas Winsor, during the Section 38 process and in which the Police Commissioner is variously, and in parts, heavily criticised. They can all be viewed here: [2]

Indeed, joined as an Interested Party (IP) to the claim, Winsor has instructed Clive Sheldon QC and Christopher Knight to draft summary grounds in support of Crompton’s claim. These address the following areas: The wider importance to policing of the claim; the Section 38 process; the alleged irrationality and disproportionality of the PCC’s decision; and the rationale concerning the participation/role of HMCIC.

The submissions conclude by saying that the judicial review application should proceed to a substantive hearing, by way of permission from the Court, as it is ‘of real significance to David Crompton and of wider significance to the functioning of the police service of England and Wales’.

The sub-text is that Tom Winsor has taken exception to Dr Billings’ willingness to ignore HMIC’s input into the decision-making process that, ultimately, led to David Crompton’s removal. On any reasonable interpretation, Winsor would welcome a common law finding that would rein in the powers of PCC’s and, in effect, give him (or his HMCIC successor) the last word on whether a chief constable should be removed, or not.

But, that niggle aside, the submissions are meticulously set out and will, no doubt, be helpful not only to the court, but to those of us who are interested both in the deeper workings of police misconduct regulations and processes – and an important insight into the mindset of one of the nation’s most important ‘watchdogs’ who oversees just the one very specific part of them.

A robust defence to the claim has been mounted by the Police Commissioner and is being marshalled by Virginia Cooper, Litigation and Regulatory partner at Bevan Brittan (best known for her recovery of huge sums of public authority funds following the collapse of Icelandic banks). Summary grounds have been drafted by Jonathan Swift QC (assisted by experienced junior counsel, Joanne Clement).

It is, of course, entirely a matter for the court to assess the overall merits of the respective arguments put forward by the two main protagonists in this action, but one cannot fail to be attracted by the crispness of the presentation of summary grounds by counsel for the PCC: Particularly striking is the phrase employed in the curt dismissal of the claims concerning the first three of the decisions under challenge: ‘Bad on their merits‘. So much so, it has been adopted as the headline for this piece. The PCC’s position is that only the final decision (to formally call for resignation) falls for public law challenge. Counsel also maintain that ‘proportionality’ is not a recognised ground for judicial review.

There is also the moot point that the JR application concerning the first decision (to suspend Crompton) was filed outside of the three month time limit. Administrative courts are generally strict on this deadline and it may well be that part of the claim falls at the first hurdle. At first blush, the argument advanced on behalf of the claimant for late service does not strike the informed observer as particularly persuasive.

Apart from the arguments as to whether one, or four, decisions should be open to challenge by the claimant, the essential thrust of the PCC’s case is that the decision he made – and subsequently sanctioned by the South Yorkshire Police and Crime Scrutiny Panel (PCP) – was one fairly and properly open to him to make. Which is, of course, for those familiar with public law challenges, a routine public authority defence in judicial review proceedings.

Counsel deals with the HMCIC’s three contributions to the Section 38 process on the basis that he must take those into account, but is not in any way bound by them.

The evidence-free proposition by Tom Winsor that confidence in South Yorkshire Police had not been adversely affected by the second of Crompton’s two post-Hillsborough inquests press releases is also countered, firstly, by reference to local and regional feedback to the contrary. Secondly, by reference to pronouncements in Parliament by the then Home Secretary, Theresa May, who was blistering in her condemnation of the second Crompton media offering.

may-as-crompton-suspended
Home Secretary Theresa May tears into South Yorkshire Police over their response to the verdicts delivered by the Hillsborough inquests jury                                                              Photo credit: BBC TV

Former Shadow Home Secretary, Andy Burnham, also features strongly in pleadings from claimant, defendant and HMCIC (as first interested party). It was Burnham who called, in Parliament, the day after the Hillsborough inquests verdict, for SYP heads to roll over the controversial manner in which the police case had been presented at the Warrington courtroom. Most particularly, by the defence team of the SYP match commanders David Duckenfield, Roger Greenwood and Roger Marshall, and in whose cause the traditional lines of blaming drunk, ticketless and non-compliant Liverpool football plans was relentlessly, and ferociously, pursued by their ‘attack dog’ counsel, John Beggs QC [3].

The other named interested party is the aforementioned PCP but the lawyer who acts for the Panel’s host authority – Rotherham Borough Council – has indicated that they will, for now, adopt only a ‘watching brief’. Mainly, in the interests of proportionality and constraining legal costs funded by the public purse.

Dermot Pearson, the Council’s senior lawyer has, however, in a measured response, invited the court to note that ‘the claimant is not asking the court to adjudicate on the lawfulness of the PCP  recommendation, or the conduct of its procedures’. He goes on to submit, on behalf of the PCP, that there is no good reason why the court should scrutinise the actions of the PCP – and gives an allegation of risk of bias by way of the political composition of the Panel (All Labour Party councillors save for one independent Member), short thrift.

The Chief Police Officers Staff Association (CPOSA) has been approached regarding the source of funding of David Crompton’s claim. It is estimated that the services of his lawyers has cost somewhere in the region of £20,000, so far. The costs to the PCC were noted at the time of filing the defence as over £17,000. HMIC’s costs are likely to be in the order of £7,000, so far, as there appears to be no instructed solicitor. These costs, to all parties, will rise sharply, of course, at the end of what is likely to be at least a two day hearing.

Judicial review applications are normally determined by a single judge on the papers.  If permission is refused at the first stage then the losing party can apply for an oral renewal, which takes place in open court, normally within a short time afterwards. If permission is given for judicial review a substantive hearing takes place. In this particular matter, the hearing will be presided over by two judges: Lady Justice Sharp and Mr Justice Garnham.

Whichever way the court’s decision falls, this is a controversy that will very likely run for some time yet. Fuelled to some degree by the findings of the same two judges at a hearing at the beginning of the month, at which an application from representatives of five bereaved Hillsborough families (Dorothy Griffiths, Barry Devonside, Becky Shah, Wendy Hamilton and Charlotte Hennessy) to be joined to the action, as interveners, was rejected. It was submitted, on their behalf by barrister, Kate Stone, that the families could assist the court by giving evidence concerning the way SYP evidence was presented at the new inquests.

A costs order was also made against the families, reported to be in the region of £28,000. Crowdfunding has been set up in an attempt to alleviate the burden [4].

Page last updated Monday 27th March, 2017 at 1015hrs

[1] Neil Wilby May 2015 – David Crompton: The South Yorkshire Years

[2] Her Majesty’s Inspectorate of Constabulary 29th September, 2016 – Section 38 South Yorkshire Police

[3] The Guardian 26th April, 1989 – Hillsborough: Deadly mistakes and lies that lasted decades

[4] Liverpool Echo 1st March 2017: Hillsborough familes told ‘YOU must pay ex-chief’s legal bill’

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Proportionality, policing and the public interest

‘Proportionality’ and ‘in the public interest’ are two of the buzz words and phrases often deployed amongst policing professionals and commentators these days, and this is a tale that brings both into play in a quite noteworthy, and in many ways, disturbing manner.

Apart from fixed penalty offences for such as shoplifting; drunk and disorderly; possessing cannabis; an offence under Section 89 of the Police Act 1996 is at the very bottom of the criminal scale: Obstructing a police officer in the execution of his duty. The most common disposal is a caution or, even, words of advice for a person of good standing and clean record.

It should come as a surprise, therefore, to many – if not all interested in policing matters – that such an offence has been recently pursued by the Crown Prosecution Service and West Yorkshire Police, aided by an evidence bundle extending to over 50 pages and which includes Criminal Justice Act statements from an inspector (who is also staff officer to the Deputy Chief Constable), two sergeants, five constables and three civilian officers, one of whom is of high managerial rank. This follows a total of thirteen hours detention of the suspect at Normanton police station and over four and a half hours of largely ineffective interviews by two constables led by PC Rebecca-Leigh Thompson.

Stephen Bradbury, a successful and well known Huddersfield businessman, was arrested (with the routine breaches of PACE that feature in so many complaint cases against WYP officers), and originally charged, with assaulting a police officer and wilful obstruction of the highway. He was not, at any time, cautioned or interviewed about the S89 obstruction offence with which he was ultimately charged. He was bailed, and re-bailed by the police, three times in total.

The charge of obstructing a police officer arises from an incident at the barrier entrance to the force car park, prior to an arranged two hour meeting at West Yorkshire Police headquarters on 12th December 2014. Two of the officers Mr Bradbury was due to meet, A/Sgt Anthony Lee and Helen Crosland, a senior civilian officer in the Force Disclosure Unit, turned turtle to give evidence against him.

Wakefield Magistrates Court heard, at a plea hearing in April 2015, that the incident in question followed several previous meetings between Assistant Chief Constable Andy Battle and Mr Bradbury, which were arranged in an attempt to resolve issues between the defendant and the force. The court also heard that a substantial without prejudice offer was made to the defendant by the Force Solicitor, Mike Percival, (in December 2013). The meetings having been called by ACC Battle to discuss the counter-offer from Mr Bradbury that followed.

Mr Bradbury pleaded not guilty at the April hearing and the trial was listed for two days, starting 26th October 2015, and directed to be heard by a District Judge, rather than a panel of lay magistrates.

The trial was duly heard before District Judge Day, on the arranged date, with Leeds barrister Martin Sleight prosecuting for the Crown and well known Huddersfield solicitor advocate Michael Sisson-Pell defending Mr Bradbury.

As a result of Mr Sisson-Pell’s intervention the witness list had been reduced from eleven potential police witnesses to five. In the event, Ms Alex Kirkham, who is personal assistant to ACC Battle, failed to appear at court (without explanation) and PC Daniel Stoppard, who assisted in the arrest of Mr Bradbury, had his evidence read to the court by the District Judge. That left three live police witnesses: A/Sgt Lee (by now demoted back to constable rank), Police HQ receptionist Emma Littlewood and Miss Crosland.

It serves no useful purpose to re-heat the detail of the evidence of what was, in its totality, an unattractive mish-mash of lies, don’t-knows, don’t-recalls and reluctant admissions of fact. The principal offender was DC Lee, who struggled, at any stage in his oral evidence, to match up with the testimony of Misses Littlewood and Crosland, or the CCTV film that was viewed several times in court or, in fact, his own written evidence and that of PC Stoppard. On top of this, DC Lee displayed a demeanour towards both defence counsel and the Court that reflected little credit on him, or the police force of which he has been part for twenty-two years.

The fate of the case was effectively sealed by the testimony of the police’s own witnesses: An offence of obstruction did not appear to have been made out by the Crown and this proposition was put to the judge in ‘half-time’ submissions by Mr Sisson-Pell. The lack of credibility of the Crown’s principal witness, DC Lee, formed the second part of Mr Sisson-Pell’s offering: During evidence it was put to DC Lee that his account of the events before, during and after arrest was ‘a complete fabrication’.

Following a detailed, incisive, and in parts scathing, summing up of the part-heard case, District Judge Day dismissed the allegation against Mr Bradbury. He also ordered that Mr Bradbury’s costs be assessed and met from central funds.

What was plain throughout the trial, and referred to by the judge in his closing remarks, is that a number of officers within West Yorkshire Police lack objectivity in their dealings with Mr Bradbury. A needless dispute that centred on whether or not Mr Bradbury was allocated a visitor’s car parking space, whilst attending a meeting at police HQ at the invitation of senior officers, had led to the fiasco in court.

Quite apart from the merits of this case, upon which readers can form their own conclusions, this prosecution throws up serious questions for, firstly, the police, who in times of austerity have not only abused bail yet again (the West Yorkshire force are, per capita, by some distance the worst abusers in the country) they have approached this matter in a grotesquely disproportionate manner – and committed themselves to an investigation and trial for a very minor offence that is likely to cost in excess of £30,000 and have taken up an enormous number of policing hours. Secondly, the CPS has decided to run this case against a background of huge criticism, nationally, of their decision making. Allegedly, at the insistence of at least one senior officer in West Yorkshire Police.

Both the police press office and the Office of the Police and Crime Commissioner for West Yorkshire were approached for comment on the proportionality and public interest aspects of the case. None has been offered.

Recordable Conduct complaints arising from the aborted trial have now been filed with West Yorkshire Police. They concern four officers involved in the case: C/Supt Clive Wain, Inspector Richard Close, A/Sgt Anthony Lee and Civilian Officer, Helen Crosland. The complaints allege  breaches of Standards of Professional Behaviour and Code of Ethics. If proven, the most serious allegations of abuse of authority and/or honesty and integrity, against all four, would amount to gross misconduct.

Additionally, there are criminal allegations of assault and criminal damage made against Lee, and taking a motor vehicle without consent and driving without insurance against Close.

Complaints were recorded on 11th November, 2015 by the Professional Standards Department of West Yorkshire Police and the force has referred itself to the Independent Police Complaints Commission concerning the incidents.

Other matters have now come to light regarding breaches of Data Protection and the Regulatory and Investigative Powers Acts and complaints will also be submitted to the police and the IPCC in due course concerning those.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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