Information rights regulator faces moment of truth

Investigative journalist, Neil Wilby, takes on the Information Commissioner (ICO) in court this week in the first of four First Tier Tribunal hearings. A fifth appeal is set to be determined on the papers.

The hearing is listed for 10am on Thursday 28th September, 2017 in Court 4 at Barnsley Law Courts. A concrete carbuncle that blights the landscape of this finest of South Yorkshire towns.

It is a public hearing and, as such, open to anyone to attend. The venue, and the associated arrangements, for this showdown has been changed no less than FIVE times in the last two months, before being finally settled upon less than a week before the listed date.

Each change has been as a result of repeated challenges to listing notices by Mr Wilby. There have been two attempts to have the appeal heard in London, for example. When parties to the appeal are based in Wakefield, Wilmslow and Northallerton.

“Plain daft” as they would say in Barnsley.

The composition of the three strong Panel has not yet been disclosed to Mr Wilby. It usually comprises of one tribunal judge and two lay members.

Julia Mulligan, the troubled Police and Crime Commissioner for North Yorkshire (PCC), has been joined as a party to the action on application by the ICO.

The appeal, lodged with the Tribunal in May, 2017 concerns a freedom of information (FOI) request made to the PCC on 8th August, 2016. The request sought disclosure of information connected to a civil court case involving the PCC and Mr Wilby. That claim was filed in June, 2016 and eventually settled in February, 2017.

Mr Wilby’s claim against the PCC, brought in his role as a journalist rather than a private individual, succeeded. He was awarded nominal damages, and costs, on that very basis.

It was a bitterly contested action and the PCC spent a five figure sum defending a claim that could – and should – have been disposed of for a fraction of the sum it cost the taxpayer in the end.

The PCC’s principal tactic was, not for the first time, to smear a journalist who had exposed yet more governance failings both in the running of her office – and her routine lack of oversight of the police force in her area.

Disclosure of the requested information was refused on the grounds that the PCC ‘could not confirm or deny‘ (often shortened to NCND) that she held any information on the civil court case.

For the FOI ‘nerds’ the exemption relied upon was section 40(5)(b). It would be ‘unfair’ to disclose the information sought because it was ‘personal data’.

The PCC didn’t state whether sub-section (i) or (ii) applied. A failing she was to repeat when asked to review the outcome of the request. Which strongly suggested that no meaningful review ever took place. It is alleged to have been undertaken by an information rights solicitor working for the PCC, Miss Ashley Malone, who sat next to Mr Wilby in court for two of the three hearing days.

There is other collateral evidence that supports that proposition that no proper review ever took place. No materials relating to it were disclosed in a data subject access request that was finalised in April, 2017.

Following Mr Wilby’s complaint to the ICO, the PCC changed her mind and decided that she would rely on section 40(5)(a). This moved the goalposts insofar as disclosing the information would breach data principles but still maintained ‘NCND’.

The ICO then upheld that revised view in a Decision Notice (FS50652012) published on her website. She completely ignored representations made to her by Mr Wilby three weeks before the decision was made.

The so called ‘investigation’ undertaken by the ICO was, on any independent view, a charade. As many others have found in their dealings with her, this is not a regulator at all minded to go looking for evidence, or test some of the wilder assertions of public authorities when refusing information requests.

In the course of his own interaction with the Information Commissioner, a level of laziness, incompetence and deceit has been uncovered by Mr Wilby that simply beggars belief. This is ‘public service’ at its very worse – and the regulator has become very uncomfortable with the level of scrutiny under which she is now placed.

The hearing on Thursday will reveal some of the defects within the organisation. It will take several more hearings for the entirety of the failings now uncovered to be made public.

Since the first appeal was launched there have been THREE other exemptions introduced by the ICO (s43, s32 and s45(5)(b)(i)), and FIVE more by the errant PCC (s32, s40(1) and (2), s42(1) and (2)). Only ONE is common to both.

The sharp eyed might note that the ICO are now looking to rely on an exemption they persuaded the PCC to abandon in January, 2017.

In all truth, you couldn’t make it up.

Yet, each of the two respondents is due to turn up in Barnsley with barristers hired in from London; Elizabeth Kelsey (Monckton Chambers) for the ICO and Alex Ustych (5 Essex Court) for NYPCC – and, of course, an in house solicitor each, Nicholas Martin and the aforementioned Miss Malone.

Another complete waste of a lumpy five figure sum from the public purse, plus an incalculable amount of time and expense incurred by a freelance journalist simply trying to follow his vocation as a ‘public watchdog’. In the process, being messed around from pillar to post – and not just by his opponents either: The Tribunal has also failed to case manage appropriately and gives such leeway to the ICO, and to a lesser extent public authorities, that leaves the strong impression of lay litigants, pursuing information rights appeals, not being at all welcomed.

Miss Malone was, of course, Mrs Mulligan’s star witness in the civil claim in which her employer was soundly defeated by Mr Wilby. Her evidence bordered on the comical, within those proceedings, and certainly did not assist the PCC’s cause: For example, a police solicitor couldn’t explain to the court whether a chief constable was a controller, or processor, of data entered onto or extracted from the Police National Computer (PNC).

A second round of civil proceedings against Mrs Mulligan is presently in the course of preparation by Mr Wilby. They are even more strongly grounded than the first, and seem certain to succeed. Notwithstanding, the power-crazy PCC has already indicated, via another of her in-house solicitors, Jane Wintermeyer, that she will waste tens of thousands more public money in defending the indefensible.

With two more information rights tribunal hearings yet to be arranged, involving Mrs Mulligan and Mr Wilby, this is a story that will run for some time yet. With a little luck, it will end with the resignation of the errant, and profligate, Police and Crime Commissioner for North Yorkshire.

Both the Information Commissioner and the PCC were approached for comment on this article. Neither even acknowledged the email carrying the request.

 

Page last updated Wednesday 26th September, 2017 at 1920hrs

 

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© Neil Wilby 2015-2017. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

 

The Code of Ethics Confidence Trick

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The College of Policing‘s Code of Ethics has often been described via my Twitter feed (@Neil_Wilby) as an Emperor’s New Clothes fairy tale, straight from the Hans Christian Andersen portfolio.

It is a joke, a confidence trick, a scam or any other similar name you would like to call it.

The only function for the ethics code, that I can realistically identify, is as a counter-offensive to the constant battering given to the reputation of policing in the relatively new internet age of social media and weblogs. Major corruption scandals have followed one after another over the past four years and, whatever the surveys might show, confidence and trust in the police has never been lower. Most people expect things to go wrong after contact with the police, in one form or another.

Whatever bright face they may wish to put on the posters, this reputational damage has rocked the police service to its core. It has also led to the total discrediting of the police complaints system – and action to rescue a sinking ship was urgently needed. This is where the Code of Ethics plugs the leak, according to the College of Policing. But it is nothing more than a convenient re-painting of the same old hulking wreck.

Chief Constables and their Heads of Communications can no longer rely on cosy, or in some cases coercive, relationships with local and regional editors to ensure the media stay ‘on message’. The police misconduct cat is now, more often than not, well and truly out of the bag, and up on the internet, long before it hits the columns of the local newspaper and their cumbersome, advertisement-riddled websites.

I base my views in this article on extensive scrutiny of the four police forces within my immediate locality. They are Greater Manchester, South Yorkshire, West Yorkshire and North Yorkshire. As a justice campaigner, investigative journalist and complaint advocate I have almost daily contact with all four.

Whilst not, on weight of evidence, the worst offenders, this article focuses on the Code of Ethics failings of the smallest, and only county force, in that grouping: North Yorkshire Police (NYP).

A key part of the Ethics problem at NYP rests fairly and squarely with the Chief Constable, Dave Jones. He is old school, with a large city force background and, like many of his era and chief officer rank, deeply resents any form of scrutiny and, essentially, regards himself above any law, regulation or code. His force’s hapless, hopeless Professional Standards and Civil Disclosure departments serve only to amplify that point.

Chief Constable Jones also happens to run a police force that has a history of failure hanging over it like a black cloud, at almost every level. Operation Essence is the most recent, visible and high level example of that, where the murderer(s) of Claudia Lawrence still remain undetected after seven years. Alienating the locals who knew Claudia best – not to mention her family – was always going to present difficulties for NYP, and so it has proved. The police are derided and mistrusted in the Heworth area of York. The chances of obtaining crucial information from that vital source is, correspondingly, diminished.

Under that same dark sky are the Jimmy Savile and Peter Jaconelli scandals that were only brought into the light by the assiduous, and relentless, work of two citizen journalists. Before the exposure by Nigel Ward and Tim Hicks – together with a BBC Inside Out programme that exclusively featured their investigation – NYP’s position was that neither of these prolific child sex abusers were known to them and two whitewash probes had been produced by the force to, specifically, underscore that position. It was a shameful passage in the history of North Yorkshire Police.

Down at the basement level things are no better in this badly run, shambolic police force. The 101 contact centre service operated by NYP is, on any independent view, deplorable. Tens of thousands of calls to the force are abandoned each year. Yet it has taken several years of relentless criticism for the force to actually begin to rectify the problem.

Again, like others of his ilk, Jones relies heavily on his press and public relations team to cover those failings. I can think of no other force, even outside of the four with whom I am most closely involved, that indulges itself with as much gratuitous self-congratulation. Anyone with two hours to spare once a month to watch the podcast of the so-called NYP Scrutiny Board will see the living proof of that (click here).

Much of my recent involvement with NYP has concerned two of their investigations which are codenamed Operation Rome and Operation Hyson. Rome was another of the force’s costly, spectacular and well-publicised failures and, it seems, Hyson may yet go the same way.

During my own probe into the workings of Rome and Hyson it has already been necessary to make three Code of Ethics complaints. The first, in December 2015, was against the Force Solicitor, Jane Wintermeyer, following interaction connected to a contemplated judicial review application. The full complaint can be viewed here and it alleges amongst other failings that she was discourteous, disrespectful and derelict in her duties. The complaint also sets out the harassing aspect of her conduct throughout our dealings.

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The filing of the Wintermeyer complaint was followed by another NYP farce. It was not recorded by Professional Standards and an appeal was made to the Independent Police Complaints Commission (IPCC). They upheld the non-recording appeal, but by that time NYP were claiming that the complaint had been recorded, after all. The evidence very much suggests otherwise. A trivial point but one that illustrates the troubling lack of candour that taints almost every communication with NYP.

The Wintermeyer complaint is presently the subject of a second appeal to the IPCC (read in full here). Amongst other serious matters, it leaves the police with a stark choice: They either admit to breach of my Article 8 convention rights by interfering with emails and letters sent via Royal Mail, or have their own Force Solicitor marked as dishonest about her claim that she didn’t receive them. It is, also, almost certain that the way the complaint was dealt with by Joanna Carter, the Chief Executive of the Police Commissioner’s office, will lead to a breach of ethics complaint being filed against her once the investigation into her colleague is complete.

A second complaint was filed on 9th March, 2016 against another very senior NYP officer, Jane Palmer. She is the Chief Financial Officer and Chief Accountant for the police force. A full copy of the complaint can be read here. The allegations are similar to those made against Ms Wintermeyer and a clear pattern begins to emerge as to how NYP view their responsibilities under the Code of Ethics. The particulars of the complaint also set out the rationale for a concerted attempt to subvert process by the two most senior civilian officers in the force, encouraged by none other than the Chief Constable. The latter has a clear personal interest in the concealing of information by Ms Palmer as he is the recipient of taxpayer funded legal fees of around £30,000 and rising from Operation Hyson.

The complaint against Ms Palmer was acknowledged on the same day by the IPCC and forwarded to the Professional Standards Department of NYP. A ludicrous determination of the complaint by T/DCI Steve Fincham, via an entirely inappropriate local resolution process, is now the subject of a further appeal to the IPCC.

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A third Code of Ethics complaint has now been lodged against the Chief Constable himself. It also enjoins the Deputy Chief Constable, Tim Madgwick and Chief Superintendent, Lisa Winward. The allegations include breaches of honesty and integrity, and discreditable conduct and the full text of the complaint can be read here.

This complaint against Jones was submitted to the PCC for North Yorkshire, Julia Mulligan, who is the Appropriate Authority for complaints of this nature on Tuesday 12th April, 2016. Those against Madgwick and Winward fall to be determined by the force’s Professional Standards Department.

This is a policing story with some way to run, yet. In the meantime, if you spot a police officer in North Yorkshire ask him (or her) if he (or she) (i) has ever heard of the Code of Ethics (ii) he/she understands what it required of him (or her) under the Code (iii) the disciplinary consequences of being found in breach of the Code?

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Page last updated Thursday 14th April, 2016 at 2040hrs

© 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: College of Policing and Office of Police and Crime Commissioner for North Yorkshire