An affront to open justice

Last Friday I reported on an appeal judgment handed down in the Leeds Registry of the High Court of Justice (read more here). It was a civil claim in which the Chief Constable of West Yorkshire Police and his legal team were defeated by a Bradford GP and medico-legal practitioner, Dr Abdul Rashid.

It was an expensive loss, in terms of reputation of the police, public confidence in them, as well as the consequential costs and, as yet unquantified, damages. Four chief officers, Norman Bettison, Mark Gilmore, Dionne Collins and John Robins have overseen this debacle from its genesis in October, 2011 and an unlawful dawn arrest five months later, involving no less than sixteen officers. The former two chiefs would have known very little about the case. Both left the force under dark clouds. The latter two deeply involved because of the huge sums of money at stake, potentially topping £5 million. Dee Collins, as she likes to be known, authorised a ‘Part 36’ offer of just £10,000 plus costs to settle the claim.

Robins has been on the scene throughout as divisional commander of the arresting officer and his cohort; temporary deputy, deputy and then chief constable. He has a great deal to answer for:

Criminal offences have been committed by officers, on the clearest of evidence (read more here), and the level of misconduct and gross misconduct by a number of other officers in the force, not least to perpetuate a grotesque ‘cover-up’ has been simply breathtaking. Pursuit of satellite interests, instinctive lying, data breaches, police computer misuse, concealing or destroying documents, suppressing witness evidence, grotesque smearing of a hard-working professional man and the pursuit of a zealous, persistent, long-running vendetta by the police, designed not only to ruin him but, principally, to defeat the civil claim.

Selective memory, of course, comes as standard with WYP in court proceedings and their main witness answered no less than 13 times in terms of ‘I don’t remember’ or ‘I don’t recall’ when questioned by defence counsel about key events or missing documents. The same officer, Sergeant Mark Taylor (as he was then) was present at the arrest and has been involved continuously in the case as exhibits and disclosure officer ever since. He should know the case backwards and have logged and preserved every single piece of evidence. That was his principal duty. Some of the key documents he couldn’t produce were his own notebooks and emails. Taylor is still a serving inspector in Bradford CID.

With, it must be said, the aid of a judge whose verdict has now been quite properly overturned, but not quite in the terms it should have been (read more here), the police very nearly got away with it. Rounding off a bad week for Mr Recorder Nolan QC as he was at the centre of a complaint outcome upon which I exclusively reported here. The complaint was not upheld, but is presently the subject of appeal to the Judicial Conduct Investigation Office.

The standing of the legal team deployed by the chief constable, in this most unpleasant of debacles, is also diminished and their own conduct, it can be argued, might well be the subject of a regulatory investigation, at the very least, in order to maintain public confidence in the civil justice system. Litigation is not for snowflakes, but what has been allowed to pass here as professional conduct is seriously troubling.

The instructing solicitor, Alison Walker, Deputy Head of Legal Services for West Yorkshire Police, is said to be already under investigation over other civil proceedings, but neither her own force or the force to whom, I am told, the matter has been referred (Cleveland) will confirm or deny. Mrs Walker will, doubtless, deny any allegations of impropriety in that particular case, and no imputation, beyond the fact that an investigation may be taking place, is made, but she has a much greater difficulty in the Rashid claim as I (and others) have witnessed it, recorded it in my notebook, reported upon it assiduously and have the complete trial transcript (running to 1166 pages) and trial bundle (electronic version of 12 lever arch volumes) to back up those scribblings. Not one word of which has been challenged by the police, or anyone else.

It is also not clear whether it was on instructions from her client, or of her own motion, but Olivia Checa-Dover of counsel sought to have me removed from the substantive hearing of the claim brought by Dr Rashid on the beginning of the fourth day (of ten). At a hearing in the same court building seven weeks later, she objected to my presence in the press box during another civil claim against West Yorkshire Police brought by a former officer, Kerry Perkins (read more here). The latter case cost the taxpayer over £80,000 in costs shortfall; the Rashid case could well cost the same taxpayers over £1 million in costs and damages. That is on Olivia’s opinion and advice. Seemingly, she, and the police, would much rather these matters, of huge public interest, were not reported and the foundation principle of open justice defeated. Not to mention the routine WYP disclosure failings, questionable witness box testimony, and the ‘cover-ups’ referred to earlier in this piece.

That, from my position in the press seats, diminishes her standing as both counsel and an officer of the court – and those instructing her, including other police forces such as Durham Constabulary (read more here) and Staffordshire Police to name but two, might, in future, consider anxiously whether she is an appropriate guardian of public funds. Or able to contain her innate bullishness.

Nothwithstanding those criticisms, I am an admirer of Miss Checa-Dover’s undoubted talent as a courtroom advocate, her ability to charm the bench and enviable case preparation skills.

As a footnote I would add that, having been adjacent to the Perkins case for over two years, from its very first public hearing in Wakefield County Court, if Kerry had not been worn down mentally, physically and financially by her former employers during the legal process, and forced to withdraw her own appeal to the High Court, she would also have ultimately succeeded in her data protection, privacy claim. A view shared by her legal team, including Sarah Hemingway of counsel, which would have been bolstered by the addition of the formidable Stephen Cragg QC to the legal team at appeal. That would have added around £175,000 to the West Yorkshire taxpayer bill, by way of costs and damages.

The spectacular oversight failings in this case of such as West Yorkshire’s hapless, hopeless Police and Crime Commissioner, Mark Burns-Williamson and his slippery chief executive and string-puller, Fraser Sampson, will be the subject of a separate article. The Independent Office for Police Conduct and Crown Prosecution Service also feature strongly in the facilitation of this grotesque debacle.

The IOPC, in particular, can expect to be put to the sword. They concealed a former WYP detective constable, Mark Lunn, in their Wakefield office for over three years and refuse to confirm that a full review of every case to which he was a party. He just happened to be the arresting officer of Dr Rashid. Even the most basic of checks by the police watchdog would have raised sufficient concerns for him not to be employed in an organisation where flawless integrity should be an absolute necessity.

Lunn is described by a former senior IOPC colleague as “lazy and corrupt, spending more time pursuing his own business interests (selling free range eggs) than his job here”. Given what is written extensively, elsewhere on this website (read here), about the wayward and dishonest Lunn, that observation has the necessary ring of truth.

Page last updated: Monday 28th September, 2020 at 1535 hours

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

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

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

Appeal hearing report: Leeds High Court Dr Abdul Rashid v West Yorkshire Police

The hearing was listed to commence at 10.30am on Thursday 14th May, 2020 before Mr Justice Nicholas Lavender in the Leeds District Registry of the High Court. It got under way shortly after 10.45am after dealing with some minor technical glitches.

Pemission to appeal was granted on the papers by the same judge on 17th December, 2019 sitting in Newcastle Cown Court.

The judgment under appeal was handed down by Mr Recorder Ben Nolan QC on 20th September, 2019 at the conclusion of a ten day trial (read full daily reports here). Dr Rashid is claiming damages against West Yorkshire Police (WYP) for unlawful arrest, unlawful detention and trespass over events that took place in March 2012 when 16 police officers attended his home in Bradford at 6.15am.

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The parties were represented, respectively, by Ian Pennock of counsel, instructed by Simon Blakeley and Olivia Checa-Dover of counsel, instructed by Alison Walker, Deputy Head of Legal Services at WYP.

The background to the appeal can be read here. There was palpable tension between the two legal teams, throughout the substantive hearing, most notably concerning disclosure.

The appeal hearing was held remotely via Skype Business. Quality of transmission was generally good and proceedings progressed smoothly. Particularly, as the judge’s dexterity in dealing with an elecronic bundle filed by the Claimant which, because of its size (232MB) was slow to load, and two lever arch files, supplied by the police, improved markedly during the morning session.

Mr Pennock, on behalf of Dr Rashid, took the court to the eight Grounds of Appeal upon which his client’s case is based. There are two further alternative Grounds that would only be triggered if the appeal succeeds.

But the first part of his submissions were taken up with what he characterised as ’22 bad points’ in the police’s skeleton argument, that had necessitated a supplementary skeleton argument from him, extending to 40 pages. He lamented that ‘the sideshow’ of correcting WYP’s version of facts and evidence, from the court below (the hearing at Bradford County Court), was not at all helpful to this court. It had, Mr Pennock said, required ‘a root and branch approach’, occupying a large amount of time, and the necessity of exhibiting a large number of passages from the court’s approved transcript.

The judge made clear that, whilst he would scan read the supplementary skeleton, it was not part of his judicial function to referee such class of disagreements between competing counsel unless, of course, they went to the heart of the matters under consideration in the instant appeal.

Mr Pennock focused to a significant extent on the police’s ‘shifting goalposts’ of the reasonable grounds for arrest of Dr Rashid, of which there are five different versions as things stand. The necessity of the arrest was also the subject of extensive discussion as another of the key appeal points.

There was a moment of levity after Mr Pennock explained that the ‘eccentric’ Dr Clive Tedd, upon whom the police relied for their ‘expert’ medical advice, claims to be able to induce whiplash injuries by clapping his hands. Something he had learned by buying second hand books on Amazon. Mr Justice Lavender enquired, deadpan, if Dr Tedd ‘had clapped his hands at trial’.

The final ten minutes of the morning session were taken up by Miss Checa-Dover, on behalf of West Yorkshire Police, and continued with her client’s response to the Grounds of Appeal after the lunch adjournment. She maintains, on behalf of her client, that the judgment from the substantive hearing was adequate, sufficiently well reasoned and that Detective Inspector Mark Taylor, the main police witness came through the examination and cross-examination of his evidence “with flying colours”.

As expected, Mr Justice Lavender indicated that judgment would be reserved and handed down at a future date, yet to be determined. There was a discussion with Mr Pennock as to whether, in the event that the appeal was upheld, he would be able to substitute his own findings for those of the court below and dispose of the matter substantively as opposed to ordering a re-hearing of the case before a different judge.

UPDATE: A more complete report of the hearing will appear in conjunction with the handing down of the judgment which is now expected to be handed down during the first two weeks of August, 2020.

 

Page last updated: Tuesday 28th July 2020 at 0715 hours

Photo Credits: Bradford T&A

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 ‘car crash’ of a judgment

On 20th September 2019, Mr Recorder Ben Nolan QC handed down his judgment in a £5 million civil claim brought by Dr Abdul Rashid against West Yorkshire Police. It followed a Bradford County Court liability hearing lasting two weeks, during which evidence was heard from three police officers repesenting the defendant. The claimant, a well-known Bradford GP and medico-legal practitioner also gave witness box testimony.

The claim concerns wrongful arrest, false imprisonment and trespass over events that happened in March, 2012 during a police investigation codenamed Operation Thatcham. It, ultimately, resulted in the conviction of 45 men over what have become known as ‘cash for crash‘ fraud offences.

A terrifying pre-dawn raid, in a middle class suburb of Bradford, saw eighteen police officers turn up at the doctor’s home where he, his wife and three young children were asleep. Other squads of officers had been despatched to his two surgeries and other business premises. It was alleged he was part of a conspiracy to defraud, relating to the cash for crash claims, although no particulars were ever put to Dr Rashid in thirty-five hours of police interviews, across a seven month period. He was never charged with any offence.

Interview records show that the questioning of the doctor, by purportedly experienced detectives, was largely infantile and almost entirely pointless. The police simply had no evidence of criminal offences, but were down a rabbit hole without an escape route. Not least, because there is no incentive for any medico-legal practitioner to commit fraud: He (or she) is paid by an instructing lawyer, whether an injury insurance claim succeeds or not – and irrespective of the content of the doctor’s report. A point that seemed completely lost on the police.

Dr Rashid was eventually released from police bail in June, 2013. The justification for the arrest or, in legal terms, the reasonable grounds for suspicion of the offence for which he was arrested, lie at the very heart of the matter.

Notable for his absence from the civil court proceedings was the arresting officer, DC Mark Lunn, described in court as ‘a bad apple’, and about whom much has been written elsewhere (read here, here and here). The police, via their barrister Olivia Checa Dover, had told the court at a pre-trial review, seven months earlier, that they were ‘unable to locate’ DC Lunn – a matter later denied at the substantive hearing. The detective (the term is used loosely) was, in fact, working for the police watchdog, the discredited and now dissolved Independent Police Complaints Commission (re-badged in January 2018 as the Independent Office for Police Conduct), just 300 yards from police HQ, in a job actually facilitated by those who said they couldn’t locate him.

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Mark Lunn, whom the police were ´unable to locate´

An account of that pre-trial hearing, before HHJ Neil Davey QC, can be read elsewhere on this website by clicking here and has stood unchallenged since that time, including by the police to whom right of reply was offered.

A comprehensive day-by-day account of the final hearing can also be read on this website by clicking here. West Yorkshire Police tried, unsuccessfully, to prevent the author of this piece reporting on those proceedings in an attempt, not only to frustrate open justice (routine for them), but, more crucially, to prevent public exposure of the rotting effect of the ‘bad apple’ officer, culminating in what appears to be a shocking conspiracy to pervert the course of justice, by six of their officers in the same barrel, that has left an unpleasant stench hanging over the large number of Operation Thatcham convictions.

At the conclusion of those proceedings in Bradford Law Courts, conducted in a palpably toxic atmosphere throughout, Recorder Nolan dismissed the claim in controversial circumstances. Not least, because of the bitter and long-running battle over disclosure, or, more to the point, the lack of it, by the police. The handling of those matters, viewed from the press seats at least, appeared to fall short of the standards one might reasonably expect of an alert, fair-minded judge. It also must be said, by way of balance, that it is a feature of many civil or tribunal claims (and in some notable criminal trials) involving West Yorkshire Police; the latitude the force is frequently given from the bench, and a tame local media, simply encourages their bad practices.

A permission appeal to the High Court by Dr Rashid was, unsurprisingly, filed by his lawyers soon afterwards. It was granted on the papers (without a hearing) on 17th December, 2019 by Mr Justice Lavender. Not a common occurrence in such matters.

A full appeal hearing is listed for 14th May, 2020 before the same judge, sitting in the Leeds District Registry. It is, however, more than likely, in the prevailing SAR-COV-2 crisis, that the hearing will take place via video conference.

The written judgment of Recorder Nolan, typed, unusually, in 16pt with generous margins top and bottom, runs to 14 pages. It is littered with schoolboy syntax errors; headed ‘judgement’ not ‘judgment’; pages are not numbered; it is undated; and carries no unique case reference or details of the parties’ representation. It even includes an exclamation mark at the end of one sentence, unprecedented in the author’s experience, encompassing many hundreds of court judgments. Likewise, the sight of a barrister being addressed only by his surname is, similarly, unheard of.

All of which gives it an amateurish look: Surprisingly so, for a part-time judge who has been at the Bar for 49 years and, plainly, has a very high opinion of himself – and one not at all slow in derogating others, both in his courtroom and on social media. A memorable example being that hard-won press cards, hologrammed and with photo ID embedded, authorised by the National Union of Journalists and the National Police Chiefs Council, are “handed out to anybody“.

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There was no perfected copy of the judgment provided to the press and it was not published electronically by the court. So, this piece is grounded in what was handed, by the court clerk, to the two members of the press present at the time.

By the tenth, and last, sitting day, the claimant’s legal team knew what to expect. A hearing where one party, and their counsel, appeared to be favoured throughout was not going to end well – and so it proved.

But, it was not just the judge’s decision to dismiss the claim that caused dismay; that was already built into the claimant’s expectations. It was the perplexing way the background narrative was rehearsed, and the equally puzzling finding of fact, that gave rise to very considerable concern. As did the judge’s consequent rulings on the applicable law.

It is well-established case law that parties to a civil claim should be able to understand why they succeeded or failed. Indeed, it can be a ground upon which an appeal can, in some circumstances, be upheld.

In interview after the trial, Dr Rashid, a highly intelligent and accomplished individual with an acquired, if reluctant, knowledge of civil law and procedure, was, it is fair to say, completely bewildered. As was his legal team, Ian Pennock of counsel (the barrister simply referred to as “Pennock” in one section of the judgment) and his instructing solicitor, Simon Blakeley.

Moreover, taking the daily court reports as a starting point, it seems as though the Nolan judgment concerned a different trial altogether. Those reports, amounting to almost 12,000 words, stand unchallenged by both the police, and the judge, despite dark, but unspecified, mutterings during the trial.

The handed down judgment, most regrettably, gives the appearance of a pre-formed decision with threadbare, and in places, inexplicable or, indeed, a complete absence of cogent analysis or reasoning. The background narrative, and consequent fact finding, also appears to leave too many crucial issues unresolved and bizarre, apparently unsupportable, conclusions on at least two of the central matters: The credibility of the principal police witness and the diligence (and record keeping) of the Operation Thatcham investigation.

More crucially, to those adjacent to the applicable statutory framework, the judge appears not to have turned his attention to the state of mind of the arresting officer and each of his alleged reasonable grounds for suspecting Dr Rashid of committing the offence, for which he was arrested, and attached to them his reasoning for finding in favour of the police. That, one might say, was his primary function as sole arbiter of this claim.

From the press seats at least, the claim largely turned on the evidence of one police officer: Detective Inspector (DI) Mark Taylor. A sergeant at the time of the arrest of Dr. Rashid and the supervisor of the errant former detective constable, Mark Lunn.

Having previously served as a custody sergeant, DI Taylor was part of the Kirklees-based Proceeds of Crime Act (POCA) recovery team. Lunn was seconded to that team from his previous role as a beat officer in Huddersfield and, later, that town’s Criminal Investigation Department (CID).

As reported contemporaneously, DI Taylor’s evidence underwent a remarkable transformation between examination on his evidence-in-chief by Miss Checa Dover and cross-examination by Mr Pennock. From a witness giving ready answers, with quite remarkable recall of detail from events 7 or 8 years previously, to a hesitant police officer constantly having to think carefully about what he was saying, and who answered thirteen times in the mode of ‘don’t recall, don’t remember, don’t know, can’t answer that, got that wrong’. Despite having been very closely involved in the police’s defence of the civil claim for almost three years before he gave his testimony in court – and in other connected regulatory proceedings, in which the police were the prime movers, since 2012.

In answer to Mr Pennock’s probing, he frequently had no explanation as to why many of the key documents that would have assisted the claim of Dr Rashid had either gone missing, been destroyed or were concealed from the claimant. Particularly, those that were effectively under his control, if the judge’s version of his role in the case is to be taken at face value. These include his own pocket books, day books, email trails, weekly reports to his superior officers, meeting notes, seized materials, copies of warrants and their supporting documentation (At the pre-trial review it was heard in legal submissions that DC Lunn’s emails were no longer available on the police’s ‘Cloud’ data storage. The judge at that hearing did pointedly observe that someone must have taken pro-active steps to remove them).

During cross-examination, DI Taylor was unable to direct the court to any document in the trial bundle – running to twelve densely packed lever arch files – where the reasons for a decision to arrest Dr Rashid are set out, and properly recorded, in accordance with authorised police practice. He did, however, concede, in evidence, that for such a major decision affecting a high profile and well-established local doctor he would have expected them to be recorded in the investigation’s policy log at the very least, together with pocket books or day books of those involved in the decision, meeting notes and his own weekly reports. It is a specific requirement under the Police and Criminal Evidence Act, 1984 (PACE) that notebook records are kept of actions preceding, during and after arrest of a suspect. DI Taylor, the supervisor of the arresting officer in Dr Rashid’s case, is unable to explain where those specific records are – or why they were not retained. Or, indeed, if they were ever made.

The court also heard that DI Taylor was centrally involved in the presentation, by West Yorkshire Police, of no less than five different versions of the ‘reasonable grounds for suspicion’ that underpinned Dr Rashid’s arrest. The first, in May 2017, being in answer to the filing and serving of the claim form, by way of their formal Defence; the last one during the trial, at the request of the judge whom, presumably, like most others present in court, was bewildered at the constantly changing police landscape. The second version was in an Amended Defence filed in July 2018 when it became clear that the original Defence was unlikely to resist the claim; the third and fourth differing versions were, respectively, DI Taylor’s witness statement dated December 2018 and his oral evidence from the witness box at trial nine months later.

One of the three remaining grounds cited by DI Taylor as the support for the decision to arrest the doctor, in that witness box testimony, from a list that at one time comprised twenty-one purported reasons, concerned a matter that only became known to the police over five months after the arrest. The other two were (i) an appointments list found in the vehicle of a person arrested in the first phase of the crash for cash investigation, but not subsequently prosecuted, and (ii) the alleged inadequacy of Dr. Rashid’s medico-legal reports. Those two grounds alone, says the detective, are sufficient to resist the claim of wrongful arrest and false imprisonment.

Examination of the trial bundle now reveals a different ground advanced by DI Taylor that is not in either of his witness statements or his court testimony. In an email to the Ministry of Justice he states baldly: ‘The main thrust of our fraud case: Was the doctor [Rashid] doing anything different to other professionals’.

The fact that all five (or now six) police versions of the reasonable grounds for suspicion are different is an important point; one that an independent reviewer might consider strikes at the heart of both the police force’s probity, and DI Taylor’s own credibility as a witness in these proceedings, yet is completely absent from the judgment. There is no reference to them at all, including the fact that the twenty-one shot West Yorkshire Police machine-gun had been reduced to just two weak blows on a pea-shooter.

Furthermore, on at least three occasions in the witness box, DI Taylor gave oral evidence that directly contradicted written evidence of his own that was to be found in the trial bundle. They were not minor points either, they were central to the police’s defence of the claim. It is more difficult to conclude that this class of historical revisionism was the product of innocent mistakes, or memory aberrations, given his remarkable powers of recall on his first day giving evidence.

Fortunately, for Dr Rashid, when taken to a compromised Third Party Disclosure Order (in successful proceedings wherein the decision of the General Medical Council to suspend the doctor from medical practice, at the instigation of DC Lunn, was quashed) which confirmed, many months after his arrest, that West Yorkshire Police confirm that [Dr Rashid] was not arrested on the basis of a specific allegation made by an individual outside, or within, West Yorkshire Police, DI Taylor, as Lunn’s supervisor, agreed that was how he understood the position to be. He was the disclosure officer in those GMC proceedings and, as such, attached to the persistent smearing of the doctor, by the police, then and ever since.

He could not, however, explain to the court why the note of a meeting, recorded on the policy log as taking place on 19th January, 2012, at which he claimed he was present, did not feature his name amongst the list of attendees posted by DC Lunn. That ‘team’ meeting was to assume high importance in the judgment, by way of deflecting Lunn’s central role in the arrest. DI Taylor claims that the grounds for Dr Rashid’s arrest were discussed there, even though the log only records that the decision to proceed was maintained. That strongly infers there was at least one other meeting, about which there appears to be no entry on the policy log, or entries in day books, or post-meeting email notes, or follow-ups. There was also conflicting testimony from DI Taylor as to whether the meeting was held in Batley or Bradford.

This January 2012 meeting appeared to be the only area of his cross-examination where DI Taylor’s powers of recall were revived. Distinctly remembering detail of a meeting with a Crown Prosecution Service lawyer, Julian Briggs, whom, on his own admission, he either met, or spoke to on the telephone, almost every single working day during that era. Quite remarkably for a meeting of such purported gravity, no-one at that meeting, it seems, made any record of the grounds of arrest of Dr Rashid. Including the CPS lawyer. Or, if they did, the police chose not to disclose them. Another, one might say crucial, point absent from the judgment.

Under questioning, it emerged from DI Taylor that the policy log itself was a key part of the general shambles that threaded through the running and supervision of Operation Thatcham. DC Lunn, on the evidence and with his shocking disciplinary record, was an unwelcome cuckoo in the POCA nest at Batley Police Station. Curiously, as a lowly, inexperienced, self-aggrandising detective constable, with a history of unlawful arrest complaints against him, albeit unsubstantiated, and a stranger to the department, DI Taylor allocated Lunn an office of his own. In the face of him still being on a written warning over a previous internal police finding of misuse of the force’s computer systems.

The policy log created by DC Lunn did not, incredibly, form part of those same police systems and was not linked to either their force-wide servers or the more local Infoshare network. He could add, amend, delete any entry on the Word document and no-one would be any wiser. Operation Thatcham was, to all appearances, a one man maverick operation that breached any number of authorised police practices, management of police information protocols, codes of conduct and, very arguably, was operated outside data protection laws.

DI Taylor told the court Lunn had been ‘recommended’ to his POCA team, but he did not say by whom. It was not explained, either, why this major investigation did not fall under the remit of one of the specialist criminal divisions in West Yorkshire Police under the supervision of a qualified Senior Investigating Officer (SIO). [In response to a post-trial freedom of information request, West Yorkshire Police made a number of palpably false responses concerning these matters in order to further conceal Thatcham’s procedural shortcomings].

Although presented by the police as the officer in charge of Operation Thatcham, in an attempt to downplay the role of the discredited DC Lunn, DI Taylor gave conflicting evidence over the number of suspects arrested in the first phase of the investigation. He told Miss Checa-Dover it was ten, when it was put to him by Mr Pennock that the actual number was thirty-eight, it was conceded, reluctantly, that he ‘got it wrong’.

Thatcham was the biggest fraud investigation in the history of West Yorkshire Police with ninety one suspects arrested in total. DI Taylor, as noted elsewhere, had been involved in regulatory and civil proceedings against Dr Rashid for seven years, in matters arising from it. Yet couldn’t answer correctly a simple, basic question concerning the operation.

Mark Taylor’s dual role of supervisor of the discredited arresting officer in the criminal matter, then sole disclosure officer, conflicted but apparently unsupervised, in the civil claim, should have given rise to concern amongst those anxious to maintain public confidence in the civil justice system. But the seriously alarming catalogue of disclosure failings, with implausible explanations, or simply no explanation, attached to most of them, did not appear to cause any anxiety to the judge at all. Indeed, his verbal attack on Mr Pennock, on the last day of the trial, when the issue of disclosure failings was raised, yet again, was as unnecessary as it was unpleasant.

These were, in essence, the disputed disclosure points which should be read with these two comments from the judge very much in mind; (i) ‘I don’t want to deprive Mr Pennock of material which he quite rightly wishes to use’, (ii) ‘I don’t want this case to go wrong by dint of  disclosure error’ and also the admission from DI Taylor that he was ‘exhibits officer trained’:

– The reasons for arresting Dr Rashid do not, or no longer, appear in the operational policy log. No audit trail relating to that document has been filed and served by the police.

– The Word document setting out reasons for suspecting Dr Rashid of criminal offences, given to Dewsbury Magistrates’ Court by way of a formal application for search warrants of Dr Rashid’s premises, is not retained on the police server.

– DI Taylor’s workbook, covering, according to his own evidence, twelve significant police investigations during that period, and, more crucially, recording the reasons for arresting Dr Rashid, was missing. As is that of every other officer involved, including the arresting officer, DC Lunn.

– The police have not produced the weekly e-mail reports, from DI Taylor to his superiors, setting out the reasons why they wanted to arrest Dr Rashid. He told the court that they still exist and could be accessed via the force’s Enterprise Vault.

– During the phase one arrests in Operation Thatcham copies of scripts that were to be used by personal injury claimants, during their consultations with doctors, were seized. When both Mr Pennock, and then the judge, asked DI Taylor where they were, and why they had not been retained, there was an interjection from Miss Checa-Dover who asserted that ‘it has been years since the criminal prosecutions had ended [in fact, April 2014] and the civil claim issued [in fact, letter before claim issued December 2015].

– Appointment diaries seized by the police from other medico-legal practitioners involved in ‘crash for cash’ claims are missing. DI Taylor told the court, ‘they are no longer in the police’s possession because it’s [the criminal trials in Operation Thatcham] gone through the statutory appeals process’. He could not explain to the court, when asked by the judge, why, when the requirement is to retain such materials for 6 years, they were no longer available. He did confirm that a CD disc for each of the doctors’ diaries had been exhibited at the trial.

– Not one contemporaneous record of the reasons given for the decision to arrest Dr Rashid can be located anywhere in the many police records where one should find them or, indeed, where it is a serious breach of Police Regulations not to find them.

– The police seized Dr Rashid’s phone and laptop. From those devices they extracted text messages (SMS). They disclosed only part of those text messages (oddly enough those that might fit the police narrative). The PC and phone had been ‘wiped’ when eventually returned to him. DI Taylor, or the police lawyers when asked, have provided no plausible explanation beyond a haughty ‘we can’t disclose what we don’t have’.

– DI Taylor’s evidence in the witness box concerning both his own philosophy as an experienced detective and, more crucially, wider police force policy: ´If it is not recorded, it didn’t happen’.

Mr Pennock submits that these provide a more than a sufficient evidential base to advance the proposition that the police records had been ‘sanitised’ to remove (or conceal, or an admission that they never existed) all the contemporaneous reasons for deciding to arrest Dr Rashid. A plausible, indeed likely, reason is that the police subsequently believe such reason(s) to be insufficient to justify that arrest and, as such, resist the civil claim.

However, none of his highly questionable evidence, or witness box testimony that was not in either of his witness statements (very often fatal to the credibility of a live witness), or the list of disclosure failures, either of, or involving, DI Taylor, appeared to trouble Mr Recorder Nolan even slightly. Indeed, his judgment, incredibly, records him as ‘a truthful, reliable and extremely professional police officer of the highest calibre’. He embellishes that claim by asserting that ‘his evidence was wholly corroborated by contemporaneous evidence’ and, to top off, gives his ‘firm view’ that ‘this [Operation Thatcham] was a well-run, closely-monitored, highly competent criminal investigation’.

Mr Recorder Ben Nolan QC

It is, set against the evidence heard first hand in court, contemporaneous reporting and, for certainty, a review of the section of the transcript covering DI Taylor’s testimony, a passage in a judgment that is as astonishing as it is shocking. Even without taking into account the number of times he had to be ‘rescued’ or led by either the judge himself, or Miss Checa-Dover, when stuck for answers to questions put to him by Mr Pennock. Indeed, Dr Rashid’s lawyers submit that on at least three different occasions the judge appeared to stray into giving evidence himself.

The only conceivable explanation being, that if an objective conclusion had been drawn from DI Taylor’s variable and selective memory, and his contradictory, frequently unimpressive evidence; his troubling supervisory failings in the criminal investigation; and his highly questionable role as disclosure officer in the civil proceedings, then he would have been found as a witness whose reliability was open to serious question and the defence of the claim dangerously, and probably fatally, undermined.

Recorder Nolan, in the face of an invitation from Mr Pennock, also drew no adverse inference from the absence of the arresting officer from the proceedings, saying ‘although he is in name the arresting officer his importance to the case has been overblown’. An inexplicable finding given that it was drawn out in evidence that DC Lunn was the only officer working full time on Operation Thatcham during its first year, and, more particularly, the period leading up to the arrest of Dr Rashid, and, of over 200 entries on the investigation’s policy log in that timespan, the definitive record of decisions, rationales, actions and outcomes, every entry except one was made by that same officer. A policy log, under authorised police practice, is required to be the domain of the SIO, usually at detective chief inspector or superintending rank.

More crucially, the records of the trial clearly reveal that DI Taylor had conceded, very early in his cross-examination, by Mr Pennock, that Lunn was ‘the main man’.

DC Lunn was also, unusually, the author of the operational orders that were drawn up in connection with two different planned arrests of the doctor. DI Taylor said in evidence these orders would have been approved by a senior officer at chief inspector rank, or above. But couldn’t point the court to any written document evidencing such approval, although he asserted that the approval would not have been by telephone.

On any view, this was a one man band operating well outside conventional police constraints, with minimal and ineffective supervision. Indeed, the court heard that, in an email to a superior, Lunn described himself as ‘Team Thatcham’ in answer to a complaint about his conduct – and in a way that appeared to suggest that his pivotal role gave him a shield against any disciplinary action over any complaint from a member of the public.

The judgment is also absent of discussion, analysis, reasoning and reasons in relation to whether, or not, DC Lunn’s unauthorised, pirate activities as a private detective to the insurance industry; or an inadequately explained payment of £183,000 by a motor insurance company to that same serving police officer, via a bogus company, around the time of his arrest of Dr Rashid; the associated leverage to obtain the ‘scalp’ of a high profile medico-legal professional to promote both DC Lunn’s and motor insurance company interests; and, the startlingly deliberate decision by senior officers involved in Operation Thatcham, and three Professional Standards Department (PSD) officers to engage in what appears to be a prima facie conspiracy to pervert the course of justice, by keeping DC Lunn’s ‘extra-curricular’ activities secret from the criminal defence teams in the ‘cash for crash’ fraud prosecutions.

There is also no evidence that a thorough, proportionate investigation was ever carried out by the police, or the IPCC to whom the matter should have been mandatorily referred, into the whereabouts of that £183,000, or whether Lunn was acting alone, or in concert with other police officers, over monies that give off the strong whiff of an inducement to extend his powers beyond what was, necessarily, lawful. The judge again strays into error with his finding that, by leaving West Yorkshire Police in August, 2013, Lunn “jumped before he was punched (sic)”. It is clear from the trial bundle that disciplinary proceedings had concluded with ‘words of advice’ and DI Taylor’s testimony, during the hearing, is that he left because he had been sent to work back on the beat and was unhappy about no longer having detective status.

Even though in almost every other civil claim of this class he would be the very first port of call, DC Lunn never even provided a witness statement in the these proceedings, and West Yorkshire Police have gone to the most extraordinary lengths to conceal both his true role in the Thatcham investigation and the full extent of his own misdemeanours – and those, it appears, of many others involved in this case. In Lunn’s case that included lying in a post-arrest report about ‘patient records being strewed about the doctor’s home and car’. A matter that both the judge and DI Taylor found very uncomfortable to deal with when when taken to the evidence by Mr Pennock that there was no such occurrence.

The police were, and still are, condoning that alleged conspiracy to pervert the course of justice in order to do so. At least one person, convicted via the tainted Operation Thatcham, has complained to their PSD about the conspiracy, since the conclusion of this civil claim, and the police have sought to disapply the requirement under the Police Reform Act to investigate this very serious matter.

The IOPC (formerly the IPCC), the notoriously toothless ‘police watchdog’, with so much to lose themselves, have also chosen to further break the law by not ‘calling in’ the investigation as a Recordable Conduct matter arising out of civil proceedings. They stonewall any questions about their shielding of the corrupted ex-DC Mark Lunn for over three years in their Wakefield office. The Home Office similarly block any press enquiries on the topic.

Returning to the Nolan judgment, Dr Rashid and his lawyers point to some of the matters that the judge sought to highlight in the background narrative that did not appear to have the necessary relevance to the matters to be determined in this trial or carried disproportionate weight. For example:

– Reference to a company named NK Business Consultants Ltd, and a payment of a £825 administration fee by Dr Rashid to that company, when the police had no knowledge of either the company, or the payment, until alerted by Stuart Davies of the Ministry of Justice on 17th August, 2012, over five months after the arrest. The fact that NK never appeared on the policy log supports that fact. [The judgment goes so far as to say that the payment to NK raised ‘intense suspicion’ pre-arrest based on DI Taylor’s witness box evidence].

– The appointment of his 19 year old nephew as a director of a company Dr Rashid has formed.

– A tenant of Dr Rashid who runs a claims management company, completely unrelated to the organised crime group featuring in Operation Thatcham, or any fraudulent claim, from the downstairs shop premises of the doctor’s private medico-legal offices above (thus keeping his private practice completely separate from his NHS surgeries), is suspected to be his brother. DI Taylor had confirmed in his testimony that ‘there was nothing unusual in this’.

– The police claim that Dr Rashid’s reports are of a poor standard [relying on an ‘eccentric’ doctor who admits to the police he ‘is no expert’ and just happens to be a friend of DC Lunn’s mother] and the scale of fees charged for the reports [which DI Taylor conceded in evidence were consistent with the market rate in the personal injury arena].

– Whilst being questioned about Dr Tedd, DI Taylor conceded that despite the entry on the policy log that the doctor was a family friend of DC Lunn, he knew nothing at all about the relationship until asked about it by Mr Pennock during the trial. ‘It´s actually news to me, even at this late stage’ said the officer purorted by West Yorkshire Police to have been running Operation Thatcham.

– How quality of medical reporting became a police matter rather than a regulatory issue [The GMC in a protracted four year investigation found nothing untoward with the reports].

Conversely and perversely, Dr Rashid and his legal team might well contend, taking the contemporaneous reporting, and their own legal note-taking during the trial, as guides, that much more relevant points were either omitted from the judge’s discussion of the case, or understated as to their relevance within the factual matrix:

– The police were told pre-arrest, by a number of personal injury specialists, that the way in which Dr Rashid runs his private medico-legal practice was not uncommon and the impact that would have on any of the alleged reasonable grounds for arrest or, indeed, its necessity. This was also confirmed by DI Taylor in oral testimony as was the fact that the police had omitted to disclose this in trial documents.

– The refusal of the police to call the arresting officer to give evidence of what he considered the reasonable grounds to be. Or for him to provide a witness statement when at the material time he was working, as a public servant, and for the police watchdog no less, in very close proximity to WYP HQ.

– The failure to preserve, or disclose, one single document where the reasonable grounds for arresting Dr Rashid could be expected to be contemporaneously, and expressly, recorded.

– The alleged failure to apply for an arrest warrant for Dr Rashid at the same time that they applied for a search warrant [In earlier preliminary hearings the police had told the court that there was no arrest warrant, a position they appeared to resile from at the final hearing].

– The failure of the police to produce evidence they seized, showing block appointments, appointment duration, fee charged, standard of reports, payments made and to whom, by other doctors. Especially, those in claims that were ultimately proved to be fraudulent.

– The fact that it is common ground that Dr Rashid never reported on any of the numerous proven fraudulent claims, or the fact that the police cannot prove and refused to disclose, any evidence that could even form a basis to say Dr Rashid had actually reported on a claim even suspected of being fraudulent.

– All the transcripts of Dr Rashid’s audio tapes, taken during patient consultations, are entirely consistent with his subsequent reports. The judge might have anxiously considered whether tape recording these interactions was consistent with alleged wrongdoing. If he did, it was omitted from his verdict.

– The fact that West Yorkshire Police knew pre-arrest that a number of other doctors actually reported on numerous proven fraudulent claims, and at least one of those doctors reported on all 14 fraudulent claimants in a completely fabricated ‘accident’ wherein all were said to have been in the same mini-bus, yet did not suspect that doctor of complicity with those fraudulent claims.

– There is no reference to the use of scripts by personal injury claimants or the fact that the police offered a ludicrous explanation for their absence from the trial bundle.

– The lawfulness of alleged reasonable grounds for arrest to be determined on a communal basis between a team of officers against the alleged reasonable grounds having to be held and believed by the actual arresting officer alone.

– Assuming there were reasonable grounds to suspect Dr Rashid of the stipulated offence, the law requires the police to also prove it was ‘necessary’ to effect an arrest. They already had search warrants for all Dr Rashid’s premises (obviating the need to arrest him to invoke powers of search). DI Taylor’s evidence in court was  that he had no reason to suspect Dr. Rashid would not co-operate with them and would have voluntarily attended for questioning. The priority, he said, was obtaining access to his mobile phone.

– The failure by the police to put even one specific allegation to Dr Rashid during 35 hours of interview over a five month period subsequent to the arrest.

– The immediate revelation, within six hours in fact, to the GMC and local Primary Care Trust of the fact that Dr Rashid had been arrested, the grotesque exaggeration of the alleged offences for which he was arrested and the avoidance of required protocol by DC Lunn, and his supervisor DI Taylor, and the circumventing of the WYP Force Disclosure Unit, who would normally undertake such sensitive matters involving regulated professionals. [The extraordinary and unauthorised missives from DC Lunn asserted to the PCT the commission of very serious offences as fact, even before one question had been put to Dr Rashid in interview. They were never, subsequently, corrected].

– The police repeatedly failed to identify any actual fraudulent claim or even suspected fraudulent claim, that Dr Rashid was even involved in.

– None of the medico-legal practitioners who were proved to have reported on fraudulent claims within Operation Thatcham, or indeed on a wider view, were arrested. This included Dr Ayoub whom had reported on the ‘headline’ case in that investigation, a bogus mini-bus crash that resulted in 14 fraudulent claims.

Other mistakes, ambiguities, under- or over-statements in the judgment include:

– No mention of the number of officers attending at Dr Rashid’s arrest (16) or its timing (6.15am).

– Dr Rashid’s release from bail in June 2013 came after a review of their original decision not to charge by a more senior lawyer, requested by the police, not after ‘a review of the evidence’.

– The false, improper and malicious notification to the GMC by DC Lunn is simply noted by the judge as ‘in the course of the investigation WYP notified the GMC’

– The judgment is silent on the point that Dr Rashid’s suspension was quashed by the High Court in September, 2012 after a senior judge presiding in that review, HHJ Mark Gosnell, had observed that ‘the police evidence against him was sparse’. Evidence gathered and put to the court by DI Taylor.

– Judgment records that the Insurance Fraud Bureau ‘assisted with’ Operation Thatcham which is a position from which their press office resiled when asked.

– The judgment asserts that one of the ‘crash for cash’ organisers, Nadeem Khaled, was a Director of Advanced Claims (UK) Ltd. That was not heard in evidence and, in any event, has no grounding in fact – as a simple check at Companies House reveals.

– The judgment repeatedly refers to Concept Accident Management Ltd as ‘Concept Claims’. It also asserts that Khaled was ‘replaced as a director’. It is a matter of public record that he never was an officer of any description in that company.

– A Lamborghini car leased from a finance company in Portsmouth was described as being ‘of dubious provenance’. It was the driver about which there were police and Ministry of Justice concerns, not the vehicle.

– The driver of that vehicle, Fouad El Habbal, was said in the judgment to be 19 or 20 years old. It is a matter of public record that he was 21 years old at the time of his arrest (born May 1990).

– The judge describes the prestigious 4 star Cedar Court Hotel as ‘a budget hotel’.

– The judgment states that CPS lawyer, Julian Briggs, ‘was present on earlier occasions when the team had met’. That, put shortly, was not the evidence of DI Taylor.

– The judgment makes no mention of DI Taylor’s unequivocal evidence that ‘the policy log was compromised‘ by the lack of time, date, entry identification (usually by author’s initials) and its remoteness from police systems.

– A passage in the judgment concerning how the nefarious activities of DC Lunn first came to the attention of senior officers also falls into error. The judge’s acceptance of DI Taylor’s account of events, against the factual matrix and another of the detective’s losses of memory is concerning to say the least.

– The judgment refers to pre-arrest interview notes (that were, strangely, undated and with no author identified): Because they refer to events that only came into the knowledge of the police many months later, they were plainly post-arrest notes.

– During the proceedings the judge referred to a payment by Dr Rashid to a solicitor as a “backhander” (in Yorkshire, and probably elsewhere, a term for a bribe). That is not how the GMC characterised it during their lengthy investigation into Dr Rashid, nor was any such suggestion, oblique or otherwise, heard in evidence from the police officers. The solicitor has never been subject of complaint, application or arrest over that payment.

– The judgment refers twice to the number of Operation Thatcham convictions as 48. That was not heard in evidence and no source is quoted. West Yorkshire Police, by way of a freedom of information request, say the number was 45.

That is a long and troubling list and readers are invited to form their own view as to what might, in the interests of fairness and balance, have been an appropriate level of care, attention and impartiality from the bench and, more crucially, might reasonably be included in the judgment of Mr Recorder Nolan, or excluded, and the impact on his decision to dismiss the claim. His almost complete absence of note-taking, throughout the trial, may have contributed to this catalogue of errors.

There are also similar misgivings from Dr Rashid and his legal team as to how the law was applied to the judge’s finding of fact. They will be dealt with more fully, in a separate article, after Mr Justice Lavender has unpicked the competing arguments and made his decision.

Mr Justice Lavender

Whatever the outcome of the this appeal by Dr Rashid, neither the police, for the manner in which they routinely conduct civil or tribunal litigation, or the judge who was, arguably, prepared to overlook too many of their shortcomings and sharp practices, emerge with credit. The latter, in the twilight of what appears to have been a distinguished legal career, might well, in future, take a leaf out of the book of the Recorder of Bradford, HHJ Jonathan Hall QC, when presiding over court proceedings. An exemplar in how to conduct any hearing.

UPDATE: Ben Nolan QC is presently the subject of an ongoing complaint concerning an offensive post he made on the social media platform, Twitter. Read more here.

Page last updated: Wednesday 13th May, 2020 at 0900 hours

Photo Credits: Twitter (@F10BENQC); Serle Court Chambers

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.

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Scandal hit Leeds law firm rocked by further misconduct revelations

Leeds is generally recognised as the second most important legal centre in the UK and is home to some famous old firms such as Addleshaws and Dibb Lupton. Those two law practices would be the amongst first calls for the powerful and wealthy who could afford the best, and most expensive lawyers, housed in plush city centre offices. Such clients would, accordingly, expect top class professional advice, court procedures followed to the letter and a successful outcome.

Those of us less well off might have to set sights lower and hope to chance upon a reliable, if less well known firm, such as Lester Morrill, that would be sufficiently competent to ensure that our legal interests were properly protected and a satisfactory outcome secured.

Someone down on their luck, however, might chance upon the dispute resolution team at Cohen Cramer and end up regretting that choice: Poorly judged representation, rules and regulations treated with disdain, money frittered away, an adverse result and a further stain not only on Cohen Cramer’s tarnished reputation but, potentially, damage to your own as well.

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Cohen Cramer came into existence in 2008 following a merger between two local law firms, Howard Cohen & Co and Cramer Richards. The former appear to have been best known as a bulk debt collecting firm operating from a PO Box in Cleckheaton, the latter a sports reputation management specialist.

At the time of the merger, joint managing partner Richard Cramer said: “We’ve joined forces to give more to our clients. The expertise we each have complements the other perfectly“. Mr Cramer is no longer associated with the firm that bears his name. The other principal figure in the merged operation, Howard Sidney Cohen, is no longer around either. His licence to practice expired in May 2014. Mr Cohen does, however, still describes himself as ‘Lawyer’ and Trustee to the troubled Shadwell care home, Donisthorpe Hall.(Full list of trustees and their roles here). The care home has just been rated as ‘inadequate’ by the CQC for the second time in six months and has been subject to criticism, some of it damning, for almost two years. This, in spite of repeated promises of appropriate remedial action by Mr Cohen and his fellow trustees. Full story here.

The former Cohen Cramer lawyer should not be confused with Howard Cohen, a practicing partner in Winston Solicitors LLP, another Leeds law firm.

Following the merger, the enlarged firm boasted nine partners, thirty lawyers and twenty support staff. The total Cohen Cramer staff complement at the time was over seventy, according to the entry they submitted to the UK Legal Directory (read here), and after they had moved to substantial premises close to the law courts in Leeds. Since May 2014, they have been housed in a converted tailoring factory further away from the city centre.

According to the Solicitors Regulation Authority (SRA) website there are now just eleven lawyers remaining (full list here). Two of whom have only very recently qualified. Another,  Mike Massen, joined Cohen Cramer in June 2014 when Gartons Solicitors was taken into the Cohen Cramer fold.

Four of the lawyers are listed at Companies House as Directors of Cohen Cramer Limited – Simon Baskind (also listed as Company Secretary), John Goodwin, Michael McDonnell and Emma Mason. The firm’s website page featuring these four is oddly vacant, apart from a stylish monochrome photograph (see here).

The exodus of key staff including, it seems, eighteen lawyers and five partners, might go some way to explaining the present state of their finances, as shown in the latest Cohen Cramer Ltd published accounts (read in full here). The money owed to the firm’s creditors is a staggering £3,654,839 (including longer term debt of £288,833) and there is a net current deficit of £951,605. Uncollected debts amount to £2,140,194.

Also, the concept that the Cohen Cramer name might still be worth over £2 million on the open market (presumably calculated as the sum of the respective sale and purchase valuations of Howard Cohen & Co, Cramer Richards and Gartons) might well confound some banking and accountancy experts. Especially now, in the notable absence of the two eponymous founding fathers and former managing partner, John Grant, who left Cohen Cramer in October 2012. Mr Grant had been with Howard Cohen & Co since 1987 and built up a specialist, and highly regarded, dental industry law practice. He is now a partner of rival firm, Goodman Grant, based in Leeds city centre.

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Two very experienced chartered accountants (one is also a certified fraud examiner, the other a local government auditor) have both scrutinised the published balance sheet of Cohen Cramer Ltd and highlighted similar anomalies:

  • Age and collectability of the £2,140,194 debts owed to the firm. Particularly, as Cohen Cramer put themselves up as experts in cashflow maintenance (see graphic above)
  • Amount owed to short term creditors, £3,366,006 is massive in relation to size of firm
  • No reflection of any asset associated with the longer term debt of £288,833
  • The net current deficit of £951,605 raises ‘going concern’ issues
  • ‘Stock’ valued at £257,420 for a service provider seems both unusual and grossly excessive
  • There is no note attached to the provisions for liabilities in the sum of £46,124 and no distinction made between provisions and any contingent liabilities
  • Lack of detail, or evidence, supporting intangible asset valuation of £2,008,073 (now amortised to £1,806,055) raises stewardship concerns over the production of these unaudited figures
  • Stewardship concerns were also raised regarding the absence of a profit and loss account. The Directors are, of course, entitled to rely on a Companies Act exemption for not publishing such figures.

One of the financial experts described the firm’s accounts as a “shambles”, the other said that publication of this article would be “devastating” to Cohen Cramer Ltd, unless they were able to show that their financial position has improved dramatically. Or, that the company was able to reverse the exodus of key fee-earners.

A partner in a well-known, award-winning, firm of solicitors in Leeds told me: “The city has suffered a string of law firm failures. Fox Hayes being the highest profile (read more here) – and I wouldn’t be surprised to see this one join them”.

Three of the solicitors who do remain with the firm are described on the Cohen Cramer website as “partners”: Karen Cawood, David Hall and the same Emma Mason who is also listed as a Director. With whom they are in partnership, and to what practical or financial purpose, is not made clear on the Cohen Cramer website.

Clarification was sought from each of the three “partners” on 28th March, 2016 regarding their roles. Six weeks later, a response is still awaited from all three.

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One of those “partners”, Mr Hall, works in the Cohen Cramer Disputes Team that is a principal focus of this article. He is certainly not listed as a partner on the Law Society database. As can be clearly seen in the image above he is an “associate”. A legitimate concern is that public sector clients may be charged a higher rate on the premise of seniority by a ghost “partner” in Cohen Cramer.

Apart from Mr Hall, there are only two other employees listed on the firm’s website as working in that department: The aforementioned Mr McDonnell and Gemma Bowkett, who started out with the firm in 2012 as a graduate assistant and was admitted as a solicitor in November, 2015.

Until a year ago there was another member of the Disputes Team who was, arguably, better known than all the other three, put together. The antics of the now notorious Emily Slater brought adverse publicity to not only Cohen Cramer, but to the wider legal profession.

  • She was the subject of a highly destructive article in the Daily Mirror following the unlawful arrest of a defendant in a civil claim.
  • The calibre of her legal work was criticised by judges, in open court, on at least four occasions. Mainly around failure to observe due process.
  • She is the principal subject of a relentless and devastating blog run by one of her legal ‘victims’, Stuart Brown.
  • She has also been heavily criticised by me in another article on this website: Liar, liar. Pants on fire
  • The high profile cases in which she was involved all appeared to end in failure for Cohen Cramer, their clients and herself.

So, how was Miss Slater, a junior, inexperienced practitioner of less than four years admission as a solicitor allowed to run amok, cause so much reputational damage and, effectively, end her own legal career prematurely? The first clue is in the track record of the senior solicitor directly supervising her, the aforementioned Michael McDonnell. The SRA found that Mr McDonnell practices law and runs his firm’s affairs in this manner:

  • Allowed the independence of himself and his firm to be compromised in a deal with a connected debt-chasing company
  • Acted in a manner likely to diminish confidence in the legal profession
  • Unlawfully conducted litigation
  • Failed to make arrangements for the effective management of the firm’s office
  • Failed to ensure an adequate system of supervision of clients’ matters conducted from the firm’s office
  • Entered into a financial arrangement which did not comply with the Solicitors’ Code of Conduct

That is a damning indictment of any law professional – or firm – and, given the scale and scope of the complaints against him and his firm over a long period, it is reasonable to infer that Mr McDonnell may have come close to being struck off.

Emily Slater left Cohen Cramer in January 2015 and, according to the SRA website, she has not practiced as a lawyer since. One report on the internet, that states Miss Slater was ‘fired‘, stands unchallenged by either her, or her former employers, over a year later.

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A further clue as to the professional demise of Miss Slater comes from a short examination of the conduct of one of the other two solicitors who is under Mr McDonnell’s supervision in his Disputes Team.

Ghost “partner” David Hall, in the six years he has worked with Mr McDonnell, has clearly absorbed the unscrupulous culture prevailing in Cohen Cramer’s Disputes Team. Mr Hall regards Civil Procedure Rules and Practice Direction as little more than a rough guide to litigation. His incompetence, exposed in open court, may yet become a legal ‘Hall-mark’, so to speak. Similarly, his wearisome belligerence and arrogance. These, significantly, were also the signature traits of the severely criticised Emily Slater.

Since this article was first published, a number of people have come forward with evidence of conduct by yet another Cohen Cramer employee that falls well below the required ethical and professional standards. This new material concerns Sarah McKell, who works in the firm’s POCA department . Curiously, her LinkedIn profile describes as a ‘senior lawyer’ having joined the firm in November 2014 (her fourth job in seven years) but her name doesn’t show up on the Law Society database either individually, or as part of Cohen Cramer’s complement of admitted solicitors. Clarification on this point – and others concerning supervision, oversight and, potentially, passing off – has been sought from both the troubled firm and from Miss McKell.

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The firm’s website says: ‘Sarah has been working in the legal profession for over 10 years, gaining experience in a wide range of areas of law’. Which, on what I have been able to uncover, appears to be a stretch of the truth.

On the written evidence I have seen, Miss McKell admits to a client, who recently fired her, that she had let them down professionally and personally. There is also no trace of letters setting out terms of engagement or client care in the file. Nor is there a letter ending the arrangment. Miss McKell withdrew her services via text message from her mobile phone.

Moreover, and more crucially, Miss McKell conceded that she had ‘badly advised’ that client, with near disastrous consequences.

On the same day that Sarah McKell’s shortcomings were identified in this article her Facebook profile was taken down. Having looked at her timeline previously, the reason could have been some of the more colourful language on display that was hardly becoming of a ‘senior lawyer’.

Miss McKell’s LinkedIn profile was also amended within 24 hours of naming her – and the reference to ‘senior lawyer’ removed from her profile.

Those two events could, of course, be unconnected to my own enquiries.

Nevertheless, several days of reckoning loom for Cohen Cramer and their ill-starred litigation lawyers as these were the warnings issued by the SRA, in its 2013 findings:

  • That Cohen Cramer and Mr McDonnell will ensure that they allocate sufficient resources to the supervision and management of the firm so as to satisfy the SRA that they are able to meet all their obligations under the SRA handbook.
  • The firm will as soon as reasonably practicable notify the SRA of any material change in the supervision arrangements.
  • Cohen Cramer and Mr McDonnell agree that they will not act in any way that is inconsistent with the SRA finding such as, for example, but without limitation, by denying the misconduct
  • If the supervision undertaking is not complied with, or if Cohen Cramer or Mr McDonnell acts in any way inconsistently with the SRA finding, the firm and Mr McDonnell accept that proceedings could be issued before the Solicitors Disciplinary Tribunal

Both Stuart Brown and I are confident that we can demonstrate beyond any doubt, simply by reference to court documents and the like, that the Cohen Cramer litigation leopard has not changed its spots and, as far as conducting legal disputes is concerned, matters have worsened, not improved, since the SRA investigation.

When first approached for comment, Simon Baskind, the Managing Director of Cohen Cramer Limited (and described as ‘Owner’ of Cohen Cramer on his LinkedIn profile), claims there are a number of ‘factual errors and misrepresentations within (my) articles’. Despite being pressed, he has refused to particularise his assertions. He also offers the view that my publications (this one and an article titled Hangin’ on a telephone wire) are ‘malicious’. But, again, offers no particulars in the face of an invitation to do so.

Mr Baskind has also refused to answer why he believes that a fit-for-purpose report that highlights the practical and regulatory failings, and precarious financial position, of a law firm receiving funding from the likes of the Independent Police Complaints Commission (IPCC) is not a public interest matter.

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More particularly, he has refused to provide any substantiation, or clarification, to the questions I have raised about his firm’s unaudited financial figures that are one of the two central points of public interest raised by this article. It has been made clear to Mr Baskind that if he provides the figures for the period ended 31st December, 2015 – and they are substantially different from the 2014 version – they will be reported upon accordingly.

Mr Baskind is similarly silent on the ‘ghost partners’ issue, but a footnote on their website says that ‘partners’ are so described to reflect their status within the firm. The questions concerning Miss McKell’s status and unethical conduct have also, so far, been ignored completely. As have those concerning supervision and his own self-evident stewardship and oversight failings. ‘Stonewall Simon’ is now on notice that if he continues to unreasonably block my questions, or my request for an interview, I will exercise my journalists’s discretion to doorstep him.

Comment has been sought from the IPCC as to the type of checks made by them over the financial  position of a law firm with whom they are believed to have spent around £150,000 – and also the track record, status and supervision arrangements of the three lawyers who have, so far, carried out the work on the IPCC’s behalf. Not to mention the antics of ‘senior lawyer’ Sarah McKell.

The press office at the Solicitors Regulation Authority have, helpfully, provided comprehensive responses on regulatory and financial questions put to them about intervention thresholds where conduct may breach a previous settlement, or there are concerns about the financial status.

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In contrast, but unsurprisingly, the IPCC have not had the courtesy to acknowledge the emails sent to them and to their Northern area press officer, Diane Bramall.

Final words in this piece go to Lupton Fawcett Managing Director, Richard Marshall, who told the Yorkshire Post at the time of his own firm’s merger with Denison Till: “Out of 11,000 law firms, roughly 3,000 are probably at serious risk of failure. Thirty of the top 200 firms are being actively monitored by the SRA (Solicitors Regulation Authority) as at risk of collapse. A number of firms are being starved of cash, partly through poor working capital management and partly because the banks are tending to have a polarised view of the legal services market.”

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Page last updated Tuesday 17th May, 2016 at 0835hrs

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