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.

 

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Key witness in police funded civil action is a proven liar

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In a sensational and very recent development it can now be proved that the central witness in North Yorkshire Police‘s High Court pursuit of two journalists over harassment claims is a liar.

And not just a little white lie, either. There is at least one whopper that could land Jane Kenyon-Miller in a criminal court.

Documents seen by me as part of extensive enquiries into the background of a police investigation, codenamed Operation Hyson, show that she made a false statement in an earlier and directly connected police probe, Operation Rome. Both these operations sought to silence critics of the force who were seeking to expose police corruption.

As Mrs Kenyon-Miller’s statement was made pursuant to Criminal Procedure Rule R27.2, Criminal Justice Act 1967 and under a declaration that states ‘I shall be liable to prosecution if I wilfully state in it anything which I know to be false, or do not believe to be true’, this leaves the police with a serious problem. Do they apply the law without fear or favour, or bow to her influence as former Chair of North Yorkshire Police Authority and friend of the Deputy Chief Constable, Tim Madgwick (pictured above with Jane Kenyon as she was then known).

That particular lie concerns Mrs Kenyon-Miller’s association with troubled American company, Belvedere Computers Inc. She remains listed as the Chief Financial Officer and Agent for Service: A matter of indisputable fact that she has consistently tried to conceal.

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In her CJA statement, given to Operation Rome detectives in 2012, she stated that Belvedere was wound up in 1983. The truth is that the company’s two officers left a trail of creditors and unpaid staff behind them when they returned to the UK. The company is still listed as suspended – not wound up – and there are ongoing Federal and State tax liabilities accruing. It was unpaid taxes that led to the suspension of the company by the California Franchise Tax Board (see graphic above).

The Chief Executive Officer of Belvedere Computers Inc is Thomas William Miller, the long-term life partner and recent husband of Jane Kenyon-Miller.

Mrs Kenyon-Miller has also claimed in another statement that she resigned as Secretary from Belvedere in 1980. Below is an image of a microfiche of the last company document ever filed with the California Secretary of State. It shows her still holding two official postions with the computer company.

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Belvedere is not the only failed company with which the Kenyon-Millers have been associated. In 2009, Pickering based Dales Timber Ltd crashed owing over £200,000. Bill Miller was sole Director and Jane Kenyon was Company Secretary. A police investigation followed this latest failure, but no charges were brought. The victims of the alleged fraud, which include one of Mr Miller’s sons, remain bitterly disappointed in how the matter was dealt with by the police. I have interviewed Jeremy Miller and his wife, Karen, at length regarding this. I have also spoken to Bill Miller’s ex-wife, Pamela.

Since then, other lines of enquiry have been opened up and two other crucial witnesses have come forward to also give witness statements and provide contemporaneous documents. New light can now be shone onto these failed ventures and the emerging picture is one that does not show the best side of North Yorkshire Police. There appears to have been a sustained cover-up designed to shield Bill Miller and Jane Kenyon from any form of sanction.

The police cannot claim that they haven’t been provided with the necessary clues: A more detailed analysis of the chequered life and business times of Bill Miller, and the former Jane Kenyon, can be absorbed from this outstanding piece of forensic journalism posted on the Real Whitby website as long ago as 2012 (click here).

Returning to the Jane Kenyon-led harassment claims, Operation Hyson is the codename for the civil court action being financed from police funds. It is estimated that the final cost of Hyson may be in excess of £500,000. Mrs Kenyon-Miller’s personal benefit, in free legal fees, would in that case be in excess of £50,000. Her friend, DCC Madgwick is also claiming to have been harassed by journalists and is receiving a similar amount of free legal fees.

It is a well grounded belief that Mrs Kenyon-Miller, a Borough and County Councillor for many years, was the driving force behind Operation Rome. A spectacular and embarrassing failure for North Yorkshire Police which, they say, cost the taxpayer a sum close to £410,000. More than the money spent on the second stage of the murder hunt for the killer of Claudia Lawrence (read more here). Operation Hyson was started immediately after Rome collapsed, seemingly on the same money no object principle.

Given her business background, and chequered family history, it is almost beyond incredible that Jane Kenyon held the legal and financial portfolios at Scarborough Borough Council until recently.

Other official documents that I have seen confirm that Mr Miller is currently the subject of at least one Department of Work and Pensions fraud investigation with a hearing planned within the next few months: A matter about which his wife, Mrs Kenyon-Miller, claims to have no knowledge.

The civil court case is on-going so further comment regarding its merits or likely outcome is not possible at this time.

Comment has been sought from Police and Crime Commissioner Julia Mulligan, who has authorised the legal funding of Mrs Kenyon-Miller’s civil harassment claim, and the Chief Constable, David Jones, who is a co-claimant in the civil action and fellow recipient of free legal fees. Both (pictured below) claim to be committed to embedding the Code of Ethics into their police force.

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A North Yorkshire Police spokesperson provided this response on behalf of the two police chiefs: “Due to ongoing legal proceedings it is not appropriate for them to make comment at this time”.

A follow-up question has been put to the force that does not impact on the civil court case: ‘Is it the policy of NYP to prosecute offenders who make deliberately false CJA statements in criminal investigations?’

This is their response: ‘It would be inappropriate for North Yorkshire Police to comment’.

A further clarification has been sought on the basis that they did not understand the question. The question regarding CJA statements was then passed to the Chief Constable’s office on 4th March, 2016.

A more detailed background piece I wrote last year on Jane Kenyon-Miller, a person whom I met when I was Managing Director of the Scarborough Evening News, can be found here.

This page last updated: Friday 4th March, 2016 at 2125

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© 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.

The North Yorkshire Police dilemma: Find a murderer or pursue journalists over alleged harassment.

Claudia Lawrence, a chef at York University, was 35 years old when she went missing in 2009. She was spotted on her way to a 6am shift at work but never arrived and hasn’t been seen since.

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Her disappearance was treated as murder, six weeks after her disappearance, and it is the view of some that North Yorkshire Police (NYP) bungled the initial investigation, codenamed Operation Cabin and led by Detective Superintendent Ray Galloway. The police also managed to upset the Lawrence family almost from the start. Not least by issuing a photograph of Claudia with the wrong colour hair soon after she went missing but, mostly, by profiling her as a promiscuous woman with ‘a secret life’.

Claudia’s parents, Peter and Joan Lawrence, and her elder sister, Ali Sims, have campaigned persistently and effectively to keep the case in the public eye and to try to achieve some sort of closure into what is an unimaginably traumatic experience for them and the rest of their family.

North Yorkshire Police undertook to review the Claudia Lawrence case in 2013 following the formation of a new Major Crime Unit based in Harrogate. The original Operation Cabin investigation had reportedly cost £750,000 (read more here) and involved thousands of police man hours but produced no arrest and no trace of Claudia, whatsoever.

Since then, detectives led by Detective Superintendent Dai Malyn (pictured below) have carried out a number of high-profile searches as part of what is now known as Operation Essence. Four local suspects are currently on bail as the Crown Prosecution Service consider a file of evidence sent to them in December, 2015. One was arrested in March, 2015 with the other three detained the following month. All were released without charge.

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In May, 2015 a freedom of information request made by the York Evening Press revealed that Operation Essence had been costed at £398,415 up to January, 2015 with 20 staff attached to the investigation.

Remarkably, that figure spent on finding the murderer(s) of Claudia Lawrence is LESS than NYP spent on Operation Rome, which was an investigation into one member of the public and two journalists for alleged harassment on the internet, or via email. Rome involved 14 officers from five departments over a 31 month period and cost £409,970 (see breakdown of costs here). Like Operation Cabin, Rome was a failure and didn’t produce a single arrest.

Also, like Cabin, the ill-starred and poorly executed Operation Rome now has a successor investigation: Operation Hyson. The pursuit of the journalists goes on and, this time around, the harassment case is one being pursued through the civil courts, using police money. The final cost of Hyson is likely to, again, be over the published figure for the second phase of the Claudia Lawrence probe.

What follows, therefore, has to be a question to the police about their priorities. Is solving the highly published mystery of the missing chef really not as important to the force as attempting to silence journalists?

Answers on a postcard to either: PCC Julia Mulligan at her Harrogate HQ or the Chief Constable at Newby Wiske police HQ.

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Page last updated Monday 29th February 2016 at 1340hrs

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© 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.

‘Complete capitulation’ follows the fall of Rome

The decision of the North Yorkshire Police and Crime Commissioner (PCC), Julia Mulligan, to use a blank cheque drawn on policing funds to finance a civil harassment claim is one that has already attracted a good deal of controversy. With more certain to follow as the case unravels.

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Efforts at unpicking both the history and the rationale behind this extraordinary and unprecedented decision have so far met with obfuscation, obstruction and downright lies from the police and the PCC’s office. Paint in a gratuitous smear, or two, and the picture is complete of a police force and an elected policing representative deeply resenting any form of scrutiny.

This report draws on information from a variety of sources. Most of it routine for an investigative journalist – published articles, freedom of information requests, Google searches, trawls of court and public records, telephone or face-to-face interviews with those involved who are willing, or able, to talk.

But this particular probe has also ventured into the less usual: clandestine meetings with informants, unannounced telephone calls from ‘no caller ID’ numbers, correspondence with a prisoner in jail, materials pushed through the letterbox or sent anonymously via post.

It is also clear, upon their own admission, that emails and letters sent to police HQ and the PCC’s office in connection with a legal challenge to the funding have either been interfered with, or disappeared. An extraordinary situation by any measure and one which the Independent Police Complaints Commission (IPCC) were asked to examine. Unsurprisingly, the IPCC completely avoided any mention the issue in a recent appeal assessment that ranks as one of the worst I have ever seen.

The pleadings in the civil court dispute, the merits of the case, or the people involved in it, form only a peripheral part of this report. It is the funding decision, and the actions leading up to it, that is the core subject of scrutiny. The formal Decision Notice was published by Mrs Mulligan on 29th September, 2015, almost twelve months after one of her employees authorised expenditure of a huge amount of taxpayer cash on a private legal matter – and exactly four months after the absence of the notice was drawn to the attention of her staff.

Indeed, it would not have been published at all were it not for considerable pressure exerted on social media (see example below); or by way of a formal complaint to the Police Scrutiny Panel in July 2015 concerning the absence of the notice from her website and via email communications between the Chief Constable’s Finance Officer, Jane Palmer, and myself in August 2015 regarding inspection of the police force’s annual accounts.

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The complaint raised against Julia Mulligan also particularised, amongst a number of other issues, concerns about the PCC not holding her chief constable to account over serial failings in the disposal of freedom of information requests (read more here). Despite the Scrutiny Panel, incredibly, not upholding the complaints concerning either the missing Decision Notice or the FoI failings, it has become clear that nine information requests made prior to October 2015 concerning the harassment claims are still unfulfilled. This nugget came from the North Yorkshire Police’s own Civil Disclosure Unit in an outcome dated 8th January, 2016 to Ms Angela Snodgrove, via the What Do They Know website (see NYP outcome here), and gives a clear indicator of the police mindset in seeking to conceal the truth over this financial farrago. A check on NYP’s FoI disclosure log suggests that they are all still unfulfilled.

The police investigation that led to the issuing of the civil harassment claim is styled Operation Hyson. It has been established that Hyson began almost as soon as its predecessor, Operation Rome, ended on 17th July, 2014. Rome was a criminal investigation which focused on two of the three defendants in the civil claim. Opened at the end of 2011, it was a complete, embarassing, and very costly failure for the force. It cannot be judged any other way when detectives spend 31 months attempting to prosecute three people for harassment, without even issuing a singe Police Improvement Notice (PIN) and interviewing only one of the three ‘suspects’?

The fall of Rome was also a major blow to former Police Authority Chair, Jane Kenyon, who was a prime mover behind Operation Rome and reportedly livid when the Crown Prosecution Service refused, on two separate occasions, to prosecute the ‘suspects’ of allegedly harassing her.

Miss Kenyon is also a central figure in the civil claim and, of course, a long term political ally of the Police Commissioner who is funding the legal fees.

A clue to the timings is found on an invoice from barrister Simon Myerson QC in which he refers to both Rome and Hyson (named after a Chinese green tea called Lucky Dragon). The first Hyson conference appears to be a near five hour marathon at Newby Wiske police HQ on 6th August, 2014 which plainly featured Mr Myerson. This meeting took place just over two weeks after Deputy Chief Constable Tim Madgwick had written to the alleged harassers saying there would be no criminal action taken against them. DCC Madgwick (pictured below) is another pivotal claimant in the civil case who is benefiting from – and presumably voted for – a huge amount of public funds to finance his private legal claim over his hurt feelings. He is also a friend of Miss Kenyon and corresponds with her in familiar terms.

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From documents disclosed to me it is also clear that following the initial Hyson meeting  Mr Myerson’s junior barrister, Hannah Lynch, spent every day for two weeks at police HQ in Northallerton, beginning 11th August, 2014, in conference about the newly instigated investigation. Whilst it is not known who else was present at these daily conferences we do learn from Miss Lynch’s invoices to NYP that Operation Hyson was the subject matter.

It was abundantly clear that, from its outset, Hyson was a major financial undertaking for the police force. It is also reasonable to infer that the police decision to proceed with the civil harassment claim – and fund it – had been taken at the 6th August meeting between the police and Mr Myerson. If not, before.

On October 3rd, 2014 it is claimed that the PCC and the Chief Constable say that they verbally tasked the Force Solicitor, Jane Wintermeyer, with collecting what are described as ‘manual estimates’ from five different departments that had allegedly incurred costs in pursuing Operation Rome. Four days later, the senior partner of Leeds solicitors Ford and Warren, Nick Collins, began billing North Yorkshire Police.

Another recent freedom of information request has revealed that Mrs Wintermeyer was Mr Myerson’s instructing solicitor prior to 7th October. Enquiries have also revealed that no lawyers ‘beauty parade’ took place before the awarding of a very substantial legal engagement to Mr Collins’ firm. NYP tell me that a process called a Single Access Tender (SAT) was invoked after Mr Myerson recommended Ford and Warren as his preferred instructing solicitor. Further details of that SAT, and the supporting documents behind it, have now been requested from NYP. The chronology put forward previously, concerning the events surrounding these legal arrangements, give rise to the strong suspicion that those documents may not exist.

An estimate of £202,000 was given to the police for the cost of the legal action fronted by Ford and Warren. This would, of course, also include the services of counsel, Mr Myerson and Miss Lynch, but exclude Value Added Tax (VAT), the treatment of which may yet become a controversial issue for the force if it has been reclaimed by them as input tax.

By 8th October, 2014 Miss Lynch had clearly started billing for preparation work on the civil harassment claim and another conference – the twelfth in just two months – took place at police HQ, involving her, two days later.

According to Mrs Wintermeyer, yet another conference took place soon after – on October 15th, 2014 –  at which the PCC’s Chief Financial Officer, Michael Porter, was asked to ‘authorise expenditure that would allow proactive legal action in respect of the alleged harassment of persons including NYP officers and staff‘. Mr Porter splits his role under Mrs Mulligan with similar duties for the Cleveland PCC. Mr Myerson was also present at this meeting.

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The ‘manual estimates’ for the Operation Rome costings were delivered on 12th January, 2015. The total put forward by Mrs Wintermeyer was £409,970.90 (the breakdown of her costings can be viewed here).

Fourteen officers had, allegedly, been involved in the Rome investigation and whilst the legitimacy of some of the number of hours, days and months actually dealing with harassment – as opposed to other viable complaints, correspondence or criminal enquiries – need to be clarified, the hourly rates used in the calculations appear highly questionable. To the extent that NYP have been tasked via another Freedom of Information Act (FoIA) request to provide substance to their figures. For example, the rate for an hour of a chief officer’s time is £35.93 whilst detectives investigating harassment (presumably at detective constable and sergeant rank) are rated at £23.24. Common sense suggests that both cannot be correct.

North Yorkshire Police have broken the law (yet again) in failing to determine that FoIA request within the statutory 20 working day period.

It would also strike the independent observer as odd that ‘back of the envelope’ cost calculations should take over three months to collect and collate, by the Force Solicitor, when both Mrs Mulligan, and the Chief Constable, each employ a highly remunerated and professionally qualified Chief Financial Officer. Both of whom might, reasonably, be expected to have such details at their fingertips.

Another curiosity is that a FoIA request determined jointly by NYP and the PCC on 1st December, 2014 stated that they could ‘neither confirm nor deny’ that the same financial information being collected by Mrs Wintermeyer actually existed (read FoI decision here).

A more recent FoIA outcome (1oth March 2016) delivered by NYP via the WhatDoTheyKnow website (read in full here) casts even further doubt onto the authenticity of the £410,000 estimate. NYP say that Mrs Wintermeyer’s costings were not even broken down year by year (2011, 2012, 2013 and 2014) which any book-keeper, with an ‘O’ level in mathematics, would deem to be a basic requirement. How can some officers have analysed their time down to the minute and, yet, not know the date they allegedly did the work on Operation Rome? The whole Wintermeyer exercise lacks a ring of truth. A remark that can also be made about a number of her contributions to Operation Hyson. To the extent that she is now the subject of formal Code of Ethics complaint (read more here)

On the same day as Mrs Wintermeyer’s ‘costings’ were delivered to her employers (12th January), she says ‘advice was provided to the PCC regarding the lawfulness of expending money from the police force budget for Operation Hyson’. She doesn’t say from whom, but goes on to say ‘On or about January 13th, 2015 advice was provided from a leading barrister‘. It is not clear upon whose instructions that the ‘leading barrister’ was acting, what those instructions actually were, or the advice given, or to whom, as Mrs Wintermeyer is claiming legal privilege. Curiously, Mr Myerson on his detailed invoice for the day in question makes no mention of providing such opinion.

Following publication of this article, Mrs Wintermeyer has backtracked from her 13th January claim and has now put forward another unlikely proposition: That Mr Myerson gave the Police Commissioner his professional opinion over the vires of the funding of the civil claim in open meeting on 15th October, 2014. Whilst, seemingly, not instructed by solicitors retained by her.

Less than a week after the highly questionable Operation Rome costings and purported legal advice were given to Mrs Mulligan and the Chief Constable, Mrs Wintermeyer says the decision was made to issue civil proceedings against the subjects of the Rome criminal investigation.

But the date given for that decision – on or about 19th January, 2015 – cannot be true, for a number of reasons. It must been taken been taken months earlier. Operation Hyson, as we know from Mr Myerson’s invoices, was underway almost as soon as Rome collapsed in July 2014. Hyson is, to all intents and purposes the collection of evidence for, and the pursuit, of the civil litigation. Another clue is that, according to a very reliable source, three of the claimants’ witness statements were drawn up and signed before 19th January. Another clue from Mr Myerson’s accounts is that he was working on his skeleton argument and a draft order on 13th January.

But the most compelling reason is that the huge amount of materials exhibited with the harassment claim form could not have possibly been assembled, printed, collated, boxed and sent to the court, the nine claimants and three defendants on the following day. It takes a porter’s trolley to wheel them into court. Included in those boxes full of lever arch files is a witness statement from Mrs Wintermeyer that names twelve other individuals as potential claimants in the harassment proceedings, including the Temporary Chief Constable of Cleveland Police, Iain Spittal (pictured below); retired NYP ACC Steve Read and five other NYP officers. Two of them at managerial rank. Four of them still serving and one retired.

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That statement also makes clear that approaches had been made by Mrs Wintermeyer to councillors and officers of North Yorkshire County Council, City of York Council, Scarborough Borough Council and Leeming Parish Council, amongst others, to canvass backing for NYP’s harassment claims. This is a process that must have taken weeks and months, not hours.

It is not clear upon whose instructions Mrs Wintermeyer was acting, in what appears to be unethical touting using the temptation of free legal funding, courtesy of the unwitting taxpayer, in the name of North Yorkshire Police. It is unprecedented and scandalous conduct by a police force, or any other public authority for that matter, following extensive searches to find a similar example. For a solicitor (and an officer of the Court) to indulge herself in such practices may also pose regulatory, or court procedural, issues.

Significantly, the number of claimants has seemingly reduced by one, not increased: Retired Superintendent Heather Pearson (pictured below) no longer appears on formal court documents, including the Consent Order agreed on 9th February, 2015. The fact that her witness statement was not signed, or dated, at the time of service may have a bearing on that. Ms Pearson was a senior officer on the failed Rome investigation under DCC Madgwick’s direction. By contrast, none of the twelve named by Mrs Wintermeyer, or the many other and so far unnamed public officials, have come forward to join in the financial free-for-all.

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But it was at the end of January 2015 where it all started to go wrong for the police, its PCC and all the others involved in Operation Hyson. Having taken almost six months gathering information for their legal claim, the decision was taken to abandon the Court’s strict requirement for pre-action protocol to be followed. This involves a letter before claim being served on defendants so that they can marshall their own resources and attempt to narrow issues between the parties, before the expense of court costs is incurred. A decision made all the more extraordinary insofar as the principal target of the litigation, Mr Peter Hofschröer, was incarcerated in HMP Wandsworth, having been arrested by NYP in York city centre six weeks earlier.

The court papers show that they were sealed on 20th January and it has been established that process servers were engaged to hand them to the defendants the day after. The cost of that exercise was over £1,000 for delivering two boxes containing fourteen oversized lever arch files to three addresses.

An interim hearing date at Leeds High Court had already been set for 9th February, 2015 by the time proceedings were filed and served. Whether the defendants were available to put their case to the judge, or not.

On the face of it, the action of the police gave every appearance of a legal ambush. It is also a fair assumption that they either did not expect the two journalist defendants, Tim Hicks and Nigel Ward (pictured below), to turn up at court – or they would attend unrepresented and find themselves facing a leading QC and a junior barrister.

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In the event, after a hasty scramble, representation was arranged for the journalists via Nottingham law firm, Bhatia Best, and London human rights barrister, Ian Brownhill. It was a smart move as no injunctive relief was granted for the nine claimants and there was no order for costs. The Daily Mirror journalist in court at the time, Mark Lister, described the Consent Order agreed by Mr Brownhill and Mr Myerson as ‘a complete capitulation‘ by the police’s lay claimants.

Mr Brownhill also raised the moot point that, in his opinion, the funding of the civil action by the police was potentially ultra vires or in layman’s terms, in breach of common law. NYP’s legal team had, at first, tried to conceal from the defendants’ lawyers that the police were, in fact, financing the claim. Nowhere, in fourteen lever arch files of pleadings, could a certificate of funding be found. Which hardly suggests that NYP were brimful of confidence that such an arrangement would withstand judicial scrutiny.

Neither did the fact that Julia Mulligan had opted not to inform the North Yorkshire taxpayers about the fact that she had committed well over £200,000 of their money, taking sides in what her solicitor describes, disingenuously, as a ‘family dispute’. No formal Decision Note was published in October 2014 when the agreement to spend this money was allegedly made with the Chief Constable and, as rehearsed in some detail above, the public would not have been informed at all without my intervention. A fact admitted by Mrs Wintermeyer in correspondence between us.

This refusal to publish details of the decision to fund a private legal claim does not sit easily with the PCC’s repeated assertion of ‘openness and transparency’ in her approach to her elected representative role or, indeed, her lawful obligations under the Elected Local Policing Bodies (Specified Information) Order, 2011 at Schedule Part 1 5(d) which states: ‘a record of each decision of significant public interest arising from the exercise of the elected local policing body’s functions, whether made by the body at or as a result of a meeting or otherwise

Mrs Mulligan, Mrs Wintermeyer and the PCC’s Chief Executive, Joanna Carter, are all silent over what they knew about Operation Hyson – and they are all also currently claiming it is uncosted as far as NYP internal charges are concerned – from its inception at the beginning of August 2014 until the meeting on 15th October, 2014, where it is said that Mr Porter approved the expenditure of Ford and Warren’s budget estimate of £202,000.

Ms Carter was Treasurer to the defunct North Yorkshire Police Authority (NYPA) from 2005 to its cessation. A very troubled period in which there were repeated scandals over alleged misuse of public funds by senior police officers. Throughout that period Jane Kenyon was, significantly, Chair of NYPA.

Piece by piece, the picture on the front of the Lucky Dragon jigsaw box begins to shape up.

By May 18th, 2015 the legal costs incurred by solicitors and counsel retained by NYP on Operation Hyson had run up to £141,737.94, almost 75% of the budget. On 29th May I first raised my disquiet with Mrs Mulligan, and her staff, about the missing Decision Notice and lack of other information to which taxpayers were entitled. Those legitimate concerns were studiously ignored.

Poor engagement with constituents, and journalists, has been a consistent feature of the PCC’s tenure and she has twice been upbraided by the Police and Crime Scrutiny Panel (PCP) on this issue. On one of those occasions, in December 2013, she was asked by the PCP to apologise to one of the two journalists involved in this action as defendant, Tim Hicks. Mrs Mulligan has steadfastly refused to do so ever since. Not only undermining her own credibility, bringing the complaints system into disrepute but, most crucially, calling into question her own personal motivation for funding the costly harassment action against Mr Hicks, with the public’s cash.

A case management hearing on 26th June, 2015 was the next court outing for the police’s high-powered and hugely expensive legal battalions, which no doubt contributed to the uplift in the lawyers’ bills to £164,602 by the end of September. This was the figure published in the long-overdue Decision Notice which appeared, unheralded, on the PCC’s website on the 29th of that month.

Submissions made by Mr Myerson in his skeleton argument ahead of the June hearing included the false claim that I had been in Leeds High Court on 9th February (rather than in my sick bed at home) and an equally ludicrous assertion that I had ‘harassed’ Chief Constable David Jones and eight other claimants by posting articles and messages on behalf of Messrs Hicks and Ward. This harassment claim was not particularised, which was unsurprising as there are no such harassing articles or messages. Significantly, there has been no contact from either Mr Jones or his police force, since the hearing, that remotely concerns such allegations. It amounted to nothing more than a blatant attempt by North Yorkshire Police to smear.

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The Decision Notice makes no attempt to account for the delay in publication, or the unusual circumstances in which Mrs Mulligan was compelled to comply with her lawful obligations. Most crucially, it does not mention that her two most senior officers, the Chief Constable and his Deputy, were to benefit by at least £24,000 each from the arrangement. We are back, it seems to the bad old North Yorkshire Police days of the Della Canning, Grahame Maxwell and Adam Briggs style of management.

The whole matter of the PCC’s Decision Notice has the uncomfortable feel of sleight of hand and historical revisionism, not assisted by Mrs Wintermeyer’s refusal to provide documentary evidence to back up the claims made in the notice. Such as email communications between the PCC and Mr Porter or Joanna Carter between August and October, 2014. Mrs Wintermeyer’s preoccupation with attempting to smear me over a similar civil harassment case, in which I recently succeeded against the IPCC and their three publicly funded lay claimants, did more to undermine her credibility than mine. A link between the two cases is that one of the IPCC’s claimants against me, Senior Oversight Manager Rebecca Reed, was also approached to join in with NYP’s harassment action. This information was taken from the Miss Reed’s own witness evidence in a third money-no-object, publicly funded harassment action which concluded on 18th February, 2016 at Leeds County Court. The defendant refused to participate in the proceedings claiming that his Article 6 convention rights were being breached by the Court.

Less than three weeks after publication of the Decision Notice, on October 16th 2015, Mrs Mulligan was telling a former local councillor at a Whitby Rotary Club lunch that ‘the spending tap has been turned off‘ as far as Hyson and the civil claim was concerned. She was, it seems, either being economical with the truth or was being misled by police’s chief officer team.

Notwithstanding the PCC’s claim, there have been two more court hearings in Leeds since the Decision Notice appeared. On 27th November 2015 and 20th January, 2016. At the first of those hearings judgment was awarded against Mr Hofschröer which leaves the two journalists as the remaining defendants and legal costs spiralling out of control – and very likely well beyond the budget figure of £202,000.

With a trial date now set for 20th July, 2016 legal costs are likely to run over to £400,000 with another large chunk of senior police officer time occupied on top of the financial burden.

The one saving grace as far as the PCC’s legal costs are concerned is that the police QC, Simon Myerson (pictured below), has absented himself from the latest two hearings, although he is still on record at the court as leading barrister for the claimants. When approached on the Twitter social media website as to why a QC was running a county court harassment claim he stated that ‘the law is complex and the point is novel’. That was taken to mean whether the funding decision was vires or ultra vires. When this was put to Mrs Wintermeyer in subsequent correspondence between us she claimed the issue of vires was not at all novel.

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Mr Myerson charges the police £300 an hour to give opinions and advocate in their cause. Even when he is travelling in his car, with expenses on top. Yet, he is happy to spend an inordinate amount of time on Twitter ‘arguing’ for free, and ‘losing’ on a surprising number of occasions.

Two freedom of information requests concerning sight of the up to date bills from Mr Myerson, his junior colleague, Miss Lynch, and Weightmans have not yet produced a response from NYP. The first of those was made on 8th January, 2016 and the police have, to the surprise of no-one, been prepared for the umpteenth time to break the law rather than comply.

A separate freedom of information request, concerning the independent legal advice received by Mrs Mulligan about the legality of the civil claim funding, also remains unfulfilled. It simply asks for sight of the invoices from the solicitor and barrister who provided the opinion. A similar request was made concerning the ‘opinion’ sought by the PCC’s auditors, Mazars LLP, that enabled them to pronounce, belatedly, that the use of public funds to fund private litigation is lawful. They are also now overdue for disposal.

So much then for Mrs Mulligan’s and the Chief Constable’s approach to openness and transparency. A phrase that is repeated no less than four times in the PCC’s Decision Notice. Doth the lady protest too much?

An update to the PCC’s Decision Notice and a sharp upward revision of the budget for the legal expenditure is eagerly awaited, as is requested comment on this report from the two police chiefs.

A clarification on the position regarding Value Added Tax and P11D benefits in kind for the police employees named in the civil claim, would also be most welcome by the taxpayers of North Yorkshire and beyond.

The cost of silencing journalists via the civil courts doesn’t come cheap, as the IPCC recently discovered, and neither is it guaranteed to succeed.

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Page last updated Thursday 19th May, 2016 at 0745hrs

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

Photo credits: Twitter (@SCynic1), BBC Inside Out, North Yorkshire Enquirer and Office of Police and Crime Commissioner for North Yorkshire