Much ado about nothing?

A judge has ruled that neither of two barristers lied over a hotly disputed conversation regarding the possible settlement of an employment tribunal claim, immediately ahead of what was intended to be the final hearing in January, 2020.

Following a subsequent Preliminary Hearing on 14th December, 2020, held remotely but hosted from Leeds Employment Tribunal, Judge Lindsey Knowles handed down a highly detailed reserved judgment, dated 2nd March, 2021, that focuses sharply on the interchange between Adam Willoughby and Olivia Checa-Dover.

It extends to 38 pages and 141 paragraphs. The judge attributed the delay in reaching his decisions to lockdown and home schooling of children. He does not explain the large number of syntax errors and a number of other factual errors, writes Neil Wilby.

At the material time, Mr Willoughby represented a serving West Yorkshire Police officer, Sergeant Umer Saeed (as he is now), and Miss Checa-Dover represented the same police force, as she frequently does in other civil court and tribunal matters.

The claim, as originally filed in May, 2019, alleges racial and religious discrimination. Two further strands to the claim were added in March, 2020 over disability discrimination and victimisation allegations.

The December, 2020 hearing was listed following a ‘private’ preliminary hearing before Employment Judge Shepherd, in August 2020, having heard representations from the parties concerning Sgt Saeed’s supplementary claims.

Following a written request, the judge has ruled that his Order(s) from that hearing cannot be released to the press.

The claim of victimisation arose from those discussions between counsel on 17th January 2020. They took place in an ante-room at the Tribunal whilst the Panel was reading case papers and immediately before the parties were invited into full session.

The start of the hearing on that day was delayed, in any event, as Sgt Saeed had an urgent medical consultation arranged for that morning. It was from that same health issue that the disability discrimination claim arose.

Judge Knowles, therefore, had two issues to determine by way of case management at the December hearing:

  1. Whether or not the actions of his counsel, on 17th January 2020, amounted to an act of victimisation by the Chief Constable of West Yorkshire Police against Sgt Saeed.
  2. Whether or not all of the Sgt Saeed’s claims should be consolidated and heard together.

The Claimant’s case

In relation to the claim of victimisation, Sgt Saeed says:

“On 17th January 2020 my representatives and I attended the Leeds Employment Tribunal for the final hearing of the racial and religious discrimination claim.

“In the course of a conversation between my barrister, Adam Willoughby, and Miss Checa-Dover, she said that she was instructed to obtain adverse findings on my credibility. In particular, she stated about me: “I am going to seek findings of adverse credibility, that he’s not credible and has lied which will affect his credibility”.

“Miss Checa-Dover further explained that she has to “be careful” how she pitches cases for the police against serving officers because, as soon as a finding is made that they have lied, they “cannot go near evidence in the course of carrying out their duties” for the police. She went on to say: “If the Tribunal finds he [Sgt Saeed] lied, he will not be able to handle evidence, he won’t be allowed in the chain of evidence”. She then stated that in such circumstances Sgt Saeed “will not be operational”.

“The representations made by Miss Checa-Dover were false in that if such adverse findings were made against my credibility, I would face a consequent investigation by the police’s Professional Standards Department and would have the opportunity to put forward my own explanation of the circumstances before a final decision would be taken as to whether or not I would be allowed to have any involvement in a chain of evidence and thus be operational or not. In other words, it was not a foregone conclusion, as represented by Miss Checa-Dover, that I would not be operational in the event the Tribunal made adverse findings against my credibility.”

Sgt Saeed asserted that this representation, said to be on behalf of his employer, was a detriment arising out of a protected act, contrary to section 27 of the Equality Act 2010.

West Yorkshire Police filed a response defending the victimisation claim. Miss Checa-Dover robustly denies that what is set out in that claim is accurate and, further, denies that what she did actually say amounted to either a threat or a form of coercion deployed in an attempt to bring about a settlement favourable to her client.

The judge heard oral evidence from three witnesses: Mr Willoughby, Miss Checa-Dover and her instructing solicitor, Mrs Victoria Clegg, who has worked for West Yorkshire Police for over 20 years. This report is unusually lengthy and detailed. The matters in issue are sufficiently important to warrant such care and attention.

Where references to alleged dishonesty, or accusations of lying, or indications of malpractice are made, they are abstracted from the Tribunal judgment. They do not reflect any view that the author may, or may not, have. This is a contemporaneous, neutral report, from a hearing at which he was present throughout, delayed pending the handing down of the judgment, because of the sensitivity and potential consequences for those at the heart of the dispute. Nothing adverse to any person mentioned is, in any way, intended or implied.

For the avoidance of doubt, there has been no adverse judicial finding concerning Sergeant Saeed’s witness evidence in this employment claim.

The evidence of Adam Willoughby

Taken to his witness statement by Dijen Basu QC, counsel for Sgt Saeed at this hearing, Mr Willoughby stated that he is very sure of its accuracy, that he remembers the case well, that it was unusual because his client had to attend hospital on that day and that Miss Checa-Dover’s comments were out of the ordinary because of the forceful way she said them.

He referred to his handwritten notes and stated that they were taken during the time speaking to Miss Checa-Dover. He said that crosses and circles on his notes are action points. He also said that he had written to “check” that the Claimant would be made “not operational”. He stated that, from his annotation of “RT + Doc” onwards, his notes are of the exchanges after he returned to speak to his instructing solicitor (Rebecca Townsend of Rebian Law and an, as yet, unidentified Police Federation representative nicknamed ‘Doc’).

Mr Willoughby was then subjected to a lengthy, and searching, cross examination by David Jones, counsel for West Yorkshire Police at this hearing.

A key component was whether the subject conversation still formed part of without prejudice discussions that had commenced the previous day and continued throughout that morning in three separate parts. Mr Willoughby maintained that a “red line” had been crossed over Sgt Saeed’s promotion and back pay (he had been serving for some months as a temporary sergeant on a constable’s salary). An un-named senior officer in WYP had raised an impediment to such a promotion over an incomplete ‘action plan’ that formed part of a ‘Unsatisfactory Performance Plan’ (UPP). Once over that “red line” it was Mr Willoughby’s view that the without prejudice element of discussions had ended and the disputed part of what Miss Checa-Dover is alleged to have said did not have that shield of immunity.

Under questioning from Mr Jones, it emerged that on 20th January, after the weekend, and towards the end of the re-convened hearing, Mr Willoughby’s position was stated, on behalf of Sgt Saeed, as ‘the parties are still trying to settle the claim’; that, in time, there was a possibility that the police may be prepared to confirm authority to promote Sgt Saeed as part of the settlement. He accepted that he did not suggest to the Employment Tribunal that negotiations had broken down and stated that his client still desired a settlement. He also accepted that on 17th January the position stated to the Employment Tribunal was that in Sgt Saeed’s absence fruitful settlement discussions could continue. It was put to Mr Willoughby that what he told Judge Shepherd on 17th January was contrary to his statement that without prejudice conversations had closed, but he reiterated his position that he hoped that the question over authority to promote his client could be resolved. He accepted that the door to settlement could be opened at any time. But he drew a distinction in terms of his conversation with Ms Checa-Dover, to the effect that for the purposes of that conversation the police could not agree to the settlement proposal and that they were proceeding with the hearing.

Mr Willoughby was asked whether or not he was ‘hedging his bets’, he replied that he would not put it like that. He was also asked whether or not his statement that ‘we will proceed with the hearing’ may be interpreted as brinkmanship and he accepted that such events occur. He accepted that he had entered the ante-room to continue without prejudice discussions with Miss Checa-Dover, although neither of them said the discussion was without prejudice. However that was implied from their discussion of terms of settlement. He accepted that the risks of litigation were often discussed but stated that didn’t happen in this conversation. He said his conversation with Ms Checa-Dover was friendly but he would not describe it as informal or glib (as she asserts). He stated that they discussed terms of settlement, and that they had previously discussed litigation risks for both sides and he felt it was important to settle as Sgt Saeed was still a serving police officer. He also stated that in their “final discussion” they did not discuss litigation risks. He said that in their earlier discussion he had suggested it would be good to settle and wrap up all claims which could include contemplated claims by Sgt Saeed relating to his eye condition and stress. He accepted that in their “final discussion” there had been a genuine attempt to settle “up to that point”.

Under cross-examination, Mr Willoughby also accepted that his notes were not complete. Asked why the Tribunal did not have the full notes, he said that it was his decision only to send the one page (numbered 11). Asked if a single page could be taken out of context, he stated that the page before is the proposed terms of settlement. He denied this could give a different perception, stating that the dispute with Miss Checa-Dover arrives at the top of page 11 and the rest of the note, thereafter, details what was said. He asserted that there was ‘nothing unusual’ in disclosing only one page of his notes.

Mr Willoughby’s evidence was that Ms Checa-Dover did say to him that she was instructed to seek adverse findings as to Sgt Saeed’s credibility. It was put to him that his only note of the conversation on page 11 was “not operational”, and that he did not record “instructed”. He accepted that, stating it was said at the point he began walking back into the room after he had made off to leave the room at what he thought was the end of the discussion, he then began making notes when he returned to the table where Miss Checa-Dover was sitting.

Mr Willoughby further stated that he drafted the ET1 claim form for the disability and victimisation claims around 1st March 2020, and accepted that that was the first point at which it was asserted that West Yorkshire Police was “instructed”.

He said in answer to Mr Jones that his workload varied; for example, working on four advices, with three cases to prepare, at present. He was asked if this was the first time he said “instructed”, six weeks later, and he replied that he drafted an earlier advisory note to his client, after the meeting with Miss Checa-Dover, which was used to draft the grounds of complaint. He stated that was drafted either on the day the hearing concluded (20th January, 2020), or the day after that. He disputed attributing the term only to his note on page 11, stating that he had a clear recollection as well. Asked why he did not include in quotes in the ET3 that Ms Checa-Dover said “instructed”. He said that was simply his drafting. He added, “she wanted to let me know she was instructed to seek adverse findings”, as he turned around, when almost at the door, she said that Sgt Saeed had lied.

Mr Willoughby was asked how it would have been evident that settlement discussions had ended and he said because he said it was a “red line” for his client; “I will see you in there, it is clear we wont be able to settle”.

It was put to Mr Willoughby, by Mr Jones, that “see you in there” might just mean you are going back in the the hearing room; he disputed that and said it was clear to her that the issue was a red line. He agreed they were going back in, anyway, but said he had told her it is clear we are not going to settle.

It was further put to Mr Willoughby that it doesn’t naturally flow from stating a red line had been reached that settlement discussions had ended, parties may be reading parameters. But, he replied, that it would have been clear: Sgt Saeed wanted a promotion and it was said the police were not going to settle on those terms and that his client would proceed with the hearing.

He accepted that shortly afterwards the parties were discussing judicial mediation with the Tribunal judge, but added that, by this time, the chronology had changed; there had been an adjournment and there would be more time, so they showed willingness to submit to judicial mediation.

Mr Willoughby, however, refused to accept that his words could have been interpreted another way, or that they were equivocal.

Asked why he cherry picked words in his note, and why there was no full record, he stated that the sentence made sense [to him, at least] and he has a clear recollection of the events on that day.

Mr Willoughby was asked about the difference between his notes, quoting “chain of custody”, compared to a paragraph in the ET1 for the second claim in which he quotes Miss Checa-Dover as saying “chain of evidence”, and he answered that these are two separate quotes. He was referred to a paragraph in his witness statement where he quotes “chain of custody”, but he referred to next paragraph stating “cannot go near the evidence”.

He said, again, that they were separate quotes. In answering questions, Mr Willoughby drew a clear distinction between his quotes of “custody” and “evidence” and explained that she said “cannot go near the evidence” and that wont be allowed in the chain is a reference to “evidence”. He was questioned further on this because his note states “chain of custody”, not chain of evidence, but his answer was that the basis of the claim is evidence.

Mr Willoughby said that he had carefully relayed his conversation to Sgt Saeed and his other representatives. He was asked why, in that case, the police officer, in his complaint to the Bar Standards Board (BSB), had said that he would be dismissed for dishonesty. Mr Willoughby denied having relayed that to him. He was asked why Sgt Saeed had stated in the BSB complaint that these events all took place during without prejudice discussions. Mr Willoughby stated that the Sgt Saeed was mistaken, and that that was not what he had said to him.

It was put to Mr Willoughby, by Mr Jones, that Ms Checa-Dover never said she was instructed to pursue adverse findings on credibility, but he refused to accept he could be mistaken and said he could only speak to their conversation. He accepted that there would be consequences for Sgt Saeed if there was an adverse finding as to credibility.

Mr Willoughby was asked about how it could be considered to be a threat if he knew it to be wrong. He stated he had a duty to disclose it to his client, and that Ms Checa-Dover would reasonably know that. He was asked why he did not push back on the point with Ms Checa-Dover and he replied that he wanted to confer with his instructing solicitor and the Police Federation representative. He refused to accept that he did not push back because it was ‘par for the course’ in these type of discussions.

Mr Willoughby denied he had similarly ‘threatened’ Miss Checa-Dover with disability discrimination proceedings, if the matter were not settled. He said he simply advised her that if agreement was reached such matters could be wrapped up in the settlement. He denied using the words attributed to him by Miss Checa-Dover in her witness statement.

In answer to questions from Judge Knowles, Mr Willoughby accepted that if there were adverse findings as to Sgt Saeed’s credibility that may impact on his involvement in a chain of evidence, he accepted that was a worst-case possible outcome. He said he did object to it being presented as automatic, because the police would consider that outcome on its merits.

Mr Willoughby was asked whether Ms Checa-Dover’s comments were couched in terms of “these type of cases” as opposed to specific to this one and he replied that he recorded her saying ‘not operational’, so it was not couched. He accepted that it was open to the police to continue without prejudice discussions at any time, but said that nothing else was said at that time to open up the without prejudice discussions again.

He accepted, however, that there were conflicts in the evidence but stated that these could be mistakes rather than lies. He told the judge that Ms Checa-Dover said that she had to be careful how she pitches these cases. He said he did not recall other comments made by Ms Checa-Dover in her witness statement but was clear that she did say ‘as soon as there is a finding he lied he cannot go near the evidence’.

In answer to questions in re-examination Mr Willoughby stated that there was no stark difference in the evidence, the greatest was an interpretation of emails, there were no “gotcha points”. He confirmed that, subsequent to the events under scrutiny, Umer Saeed has since gained a promotion to Sergeant.

The evidence of Olivia Checa-Dover

Miss Checa-Dover was taken through her evidence by Mr Jones.

In her witness statement she recounted the events of 16th and 17th January, 2020

On the 16th, Mr. Willoughby had contacted her by telephone and said both he and Sgt Saeed were keen to settle the discrimination claim. He was new to the case, at that point.

She told him that an attempt had been made, previously, to resolve the claim at a joint settlement meeting and had found Sgt Saeed’s expectations to be unrealistic. For example, she said ‘the police force was not going to delete “PEN entries” relating to his treatment of women’.

Mr. Willoughby listed what Sgt Saeed wanted and Miss Checa-Dover took instructions from the police solicitor, Mrs Victoria Clegg, to relay information back to him. Mr. Willoughby chased her during the day for an answer, but the police were unable to accede to the requests; they were not as straightforward as he thought. For example, Sgt Saeed wanted to be substantively promoted to sergeant, but he had not completed his action plan.

Early on the 17th, Miss Checa-Dover received an email from Mr Willoughby. It dealt with some ‘housekeeping matters’ association with the hearing that day but he remained keen to resolve the claim. The matter of Sgt Saeed’s hospital appointment that morning was also raised.

In any event, Mr Willoughby would be at the Tribunal from 9am and ‘We can continue settlement discussions then. I don’t think we are miles apart’ he said.

Due to Sgt Saeed stating he was too unwell to proceed with the hearing, and the Employment Judge wanting medical evidence of his condition, there was a great deal of waiting on that morning, says Miss Checa-Dover. Mr. Willoughby mentioned to Judge Shepherd that this time could usefully be used to try and find an agreement between the parties.

The discussions between the two barristers, says Miss Checa-Dover, were informal, friendly and, at times, glib. Much in the usual way counsel speak to each other. We discussed the risks of litigation for both sides – this is all normal.

Mr. Willoughby ‘warned that if a settlement was not reached that day Sgt Saeed would be bringing a disability discrimination claim, but would not if matters were resolved’. She took this ‘threat’ to be a normal part of without prejudice settlement discussions. He also shared his view of the Claimant’s expectations – this is all a normal part of counsel-to-counsel discussions.

During one of these discussions, when Mr. Willoughby and Miss Checa-Dover were alone in a waiting room, they explored the nature of the evidence in dispute. She was seated at a table working on her laptop and he was, at times, walking and, at other times, seated opposite me.

She said to Mr. Willoughby that the problem with these cases when the officer is still in post is, of course, the effect an adverse judicial finding has. Miss Checa-Dover regularly acts in police misconduct hearings, and previously practised in crime, and she had thought what she was saying was uncontroversial, assuming that this would also have been obvious to Mr. Willoughby.

Miss Checa-Dover also said that she was careful never to put to a witness that something is a “lie” when it could be a mistake and that much of what Sgt Saeed alleged was probably his genuine, but mistaken, perception. However, in her view, there were a few matters which he just can’t be mistaken about. He’s either telling the truth or he’s lying. If he is found to have lied by a Tribunal, realistically he’s not going to be allowed in an evidential chain [in any future police investigation].

This, she said, was a conversation between two counsel, both of whom, it is thought, would have understood the gravity of a potential finding that a police officer lied in legal proceedings. In any event, Miss Checa-Dover was sharing her view of the case as counsel frequently do. It is made very clear in her evidence — she was not told to say this by anyone and never told Mr. Willoughby that she was acting on instruction, because she wasn’t.

She also asserted that it was never said that this was West Yorkshire Police policy or that Sgt Saeed would be non-operational straight away. It was also not said, she says, that he would be deprived of a misconduct hearing. It’s a given that he would have gone through the misconduct process with an investigation, severity assessment etc., pursuant to the applicable Police Regulations. These were discussions with fellow counsel, not a litigant in person.

Miss Checa-Dover was clear that she never said she had been told to call Sgt Saeed a liar. She told Mr Willoughby that when a cross-examination is prepared she is always careful to ensure ‘the pitch’ is fair. Here, in this claim, having done that exercise, she says ‘it was regrettable that there are some things Sgt Saeed just can’t be mistaken about’. How counsel prepares cross- examination is a matter for them, not their lay or professional client.

This discussion on 17th January, 2020 was a friendly, without prejudice, conversation between counsel, talking about the ramifications of running the claim at a hearing before the Panel, as opposed to settling beforehand.

On 21st October 2020, Miss Checa-Dover received a letter from the Bar Standards Board informing her that Sgt Saeed had made a complaint about her. The letter was a notification that the case had been closed, but it was the first time she knew of the report having been made to the regulator. Potentially, a serious matter for any barrister.

Within the section of the complaint form headed: ‘Detail of your report’, Sgt Saeed wrote the following:

“Whilst in discussion around resolutions to avoid the commencement of full proceedings, some “without prejudice” discussions took place between counsels (sic). During these discussions Olivia Checa-Dover…”

It appears from that paragraph, Miss Checa-Dover said, that Sgt Saeed also understood the discussions his counsel and her were having, in private, to have been ‘without prejudice’ in nature.

In cross examination by Mr Basu QC, Miss Checa-Dover was asked about the details of the settlement negotiations that she had placed into her notes at the time. She said that they were fluid, prepared throughout the talks and included her own thoughts as well as what was said. She agreed there had been a discussions about a City and Guilds issue and Sgt Saeed’s promotion, both with her instructing solicitor and with Mr Willoughby. She accepted that she was not writing everything down. The reference in her notes about being a temporary sergeant involved a sticking point over pay, as a temporary sergeant is not paid as a substantive sergeant.

She accepted that application of the UPP (Unsatisfactory Performance and Procedure) was a bar to substantive promotion. She discussed Chief Inspector Winter and capacity to settle with her instructing solicitor and Mr Willoughby. There were discreet conversations with Mr Willoughby about pay, recorded in her notes, followed by the discussion under the heading capacity to settle and then an agenda was recorded. 

The notes are a mixture of what Mr Willoughby said to her and what she said to him. The notes are topic led, not time led and may be out of sequence. She referred to the headings of backdating pay, ability to ring-fence funds and the funding of an MBA course being settlement discussions. Her notes recorded that she had asked Mr Willoughby to confirm what the backdating of pay issue was, but it turned out, in the event, that pay would not be affected. 

She stated that the other headings in her notes were not settlement discussions and were subject to legal professional privilege. 

Ms Checa-Dover told Mr Basu QC that her notes would not help with the disputed part of the discussion, she does not have notes of that exchange of views. 

She said that she first became aware of Mr Willoughby’s account and contentions when she opened his witness statement about two weeks before the present application hearing in December, 2020. She stated that she knew of the victimisation claim, which was served on the police just before the case management hearing on 11th March, 2020, almost two months after the disputed conversation at the January hearing. Miss Checa-Dover said she didn’t understand the nature of this claim, but they both agreed to withdraw from the case, as a consequence, and Mr Willoughby told her it was no criticism of her.

Miss Checa-Dover agreed with Mr Basu QC that it was vital for counsel to stick to instructions. She stated that, in this particular case, she was sharing an opinion, sharing a view in an informal way with a barrister. In terms of the material part, it was fine for Mr Willoughby to correct her. She accepted that she had no instructions to seek adverse findings. There were parts of evidence in Sgt Saeed’s claim which were diametrically opposed, and the Tribunal would have to decide on those issues.

She did not have instructions, she said, to tell Mr Willoughby that she would seek adverse credibility findings, nor did she do so. She stated that she was not instructed to say that Sgt Saeed would not be operational, nor did she say that. 

She agreed she had good reason not to question his integrity because he is a serving policeman. She said it is about precision; if it can be a mistake it should be put as one. She accepted she had not been positively instructed not to seek adverse credibility findings. When asked if it was open to her to seek adverse findings, she stated that was not what she intended. She told Mr Basu QC she never said or intended to say to the Panel that they had to make such a finding.

Asked if that option was available, she said it was open to her to invite the Panel to prefer one witness account over another. She disputed it was open to her to say this claimant was a liar and said it was not about lying. She denied she would argue that a witness was lying, simply because she could. She stated that she was aware of a conversation between John Robins, the present Chief Constable of West Yorkshire Police and Sgt Saeed, but did not know the details. It was put to her that Mr Robins would not deal with Sgt Saeed in an aggressive way; Miss Checa-Dover agreed that he would adopt a friendly caring approach, given that Sgt Saeed was still serving.

When asked by Mr Basu QC if everything discussed between counsel is likely to be relayed to the client she disagreed, saying that they would share opinions – most of which would not be relayed. Asked if she was duty bound to give a good account of the conversation, she stated ‘of all relevant matters’. She also pointed out that if counsel shared everything the whole system would ‘go to pot’. She agreed points might be prefaced with ‘I’ve no instructions, but….’.

She accepted nothing was prefaced to Mr Willoughby in that way in their discussions.

She denied saying the police cannot agree to Sgt Saeed’s promotion, stating that the discussions had not got to that stage. She was stating there were practical difficulties. She denied saying impossible, stating that this was not what they were discussing. She stated that Mr Willoughby’s position was that he could not be clear about pay. She conveyed that, in her view, there could not be a problem with pay, but Mr Willoughby was unable to obtain instructions from either his lay or professional client over what the problem was.

Miss Checa-Dover denied that Mr Willoughby told her that this was a ‘red-line’. She said he is wrong and , furthermore, she did not think that; they all went into Tribunal hearing still desiring settlement. She also disputed Mr Willoughby’s contention that had the Sgt Saeed been there, the claim would have proceeded to hearing.

She referred Mr Basu QC to the fact of the case not being ready, a list of issues to be determined by the Tribunal not being finalised and to discussions about settlement and judicial mediation.

She denied Mr Willoughby was trying to leave the waiting room and came back when she said something to him, denied he walked out saying ‘see you in court’ and says that they were having a normal friendly conversation.

It was put to her by Mr Basu QC that the discussion was not informal or glib, she replied that there were formal requirements but the tone was informal and friendly and glib.

She also denied having said she was instructed to seek adverse findings or that ‘Sgt Saeed was not credible and had lied’. Asked whether there was no truth in her fellow barrister’s claims over what was said, she told Mr Basu QC that what she was saying is that there were problems with these types of cases and she took Mr Willoughby through the few matters that she felt Sgt Saeed could not be mistaken about.

She described Mr Willoughby’s account of the disputed conversation as ‘totally wrong’. She denied having issued a menacing threat. She stated it was nothing like that, they spoke in normal tone and it was obvious she was sharing that aspect of these type of cases involving police officers. She stated she shared things like that all the time. She denied this was different to chit chat, and denied she was trying to get a message across. She stated that suggestion astounded her, she was sharing it in a way that counsel normally do.

Miss Checa-Dover denied having referred to the ‘chain of custody’, stating instead that she referred to the ‘evidential chain’. She stated she has never referred to the chain of custody. She accepted saying to Mr Willoughby if there are adverse findings there are problems in the evidential chain. She accepted it would, potentially, be a disaster, that one would not be operational in the sense that they would either be suspended or given a role serving another purpose [restricted duties].

She accepted that, if such circumstances arose, she said the force would have to inform defence teams in criminal trials. Mr Willoughby said he didn’t understand that, so she explained it to him. She denied saying that an officer would be ineffective, she stated that she explained the issue is in the evidential chain.

She stated that she did not recall Mr Willoughby writing in his notebook. She stated at the time she had her laptop open on the cross-examination page. She had a clear recollection of this, and that there was only one conversation in the waiting room, as opposed to at least two other conversations in one of the smaller consultation rooms in the building.

Miss Checa-Dover told Mr Basu QC that she was not saying that Mr Willoughby was not telling the truth, but she can say what happened and it is regrettable they do not recall it in the same way.

She accepted that she had drafted the response to the first claim [racial and religious discrimination] and had not pleaded that the allegations were false and in bad faith. It was put to her by Mr Basu QC that this ‘was not a lying case’ and Miss Checa-Dover answered that the West Yorkshire Police position was ‘that some of what Sgt Saeed had said in his statements was demonstrably wrong’. She denied that she knew those comments would be relayed to Sgt Saeed when he was not in a suitable frame of mind, upon his return from hospital that morning.

Miss Checa-Dover denied that what she said was a threat, ‘it was nothing like that’ and stated she was at pains to explain how careful she was. She denied it was a ‘mafia threat’, saying that their conversation was friendly, there was no sinister presentation, there was no criticism of her at the next hearing and that as far as she was concerned the majority of this is ‘a misunderstanding’.

In answer to questions from Judge Knowles, Miss Checa-Dover denied that she ever said that Sgt Saeed would ‘not be operational’, or would be ‘ineffective’, but she did say that on some topics he couldn’t be mistaken. She stated that the he was at risk of an adverse finding on credibility, ‘the nature of the differences in the evidence was so stark’, and that troubled her. She stated that her notes did not refer to those points; instead she had her cross examination notes in front of her and they discussed the few occasions where those real risks arose.

Ms Checa-Dover was not re- examined by Mr Jones.

The evidence of Victoria Clegg

Mrs Clegg then gave evidence. She was taken to her witness statement by Mr Jones, in which she states that she did not instruct Ms Checa-Dover to obtain adverse findings on Sgt Saeed’s credibility, question his integrity or suggest that he would not be considered operational.

In answer to questions put in cross-examination by Mr Basu QC, she denied any specific knowledge of Mr Robins’ conversation with Sgt Saeed. She did agree, however, that the chief constable had spoken to her and she had been asked to provide an explanation of the current position in the Tribunal proceedings. She was not aware that the chief constable had said he would like to see Sgt Saeed promoted.

She denied having instructions to seek adverse findings against Sgt Saeed; to question his integrity, his credibility or honesty. She accepted those matters may cause difficulties in the evidential chain. She denied there was any policy concerning credibility issues for serving officers, stating that each case would be considered on its merits. She accepted there was a reluctance, especially in the Employment Tribunal because the working relationship between the police force and the officer making the claim would be harmed.

She said that if Ms Checa-Dover had asked for approval of a credibility attack she would want very clear instructions to authorise that. She stated that she did not tell Ms Checa-Dover to do that; they did not discuss it at all and said it had never happened before in her 21 years acting for the Respondent, or the 12 of those in which she had been handling employment claims. She could, however, recall a case where a police officer withdrew from a case over that very risk.

The judge’s findings

Miss Checa-Dover and Mr Willoughby plainly do not agree upon the content of the core conversation which Sgt Saeed relies upon in the section of the particulars of his second claim, concerning victimisation.

There are no obvious reasons to prefer the evidence of one of them above the other says Judge Knowles. Both appear to him to be credible witnesses. Neither has been accused by the other of lying to him, he adds.

It is for him to determine the facts, as they appear, on the balance of probabilities. Whilst he can comment on who’s evidence he preferred, it is not the case, in his view, that one of the barristers must be giving an accurate account and the other an inaccurate account. It is, of course, open to him to make a finding that neither of them has satisfied the Tribunal that what they state they said is, on the balance of probabilities, what was actually said: ‘People can struggle to recollect events and their memory is fallible and can be unreliable’.

There are inconsistencies in the evidence which the Tribunal has heard and neither account can be fully correct. The fact that Mr Willoughby has notes which are contemporaneous, taken as he had a discussion with Ms Checa-Dover, forms part of the fact-finding exercise.

Conversely, Miss Checa-Dover’s notes do not contain any record of the disputed part of the conversation and which is the sole subject matter of Sgt Saeed’s victimisation claim.

Taken into account by the judge is the fact that Mr Willoughby’s notes are a single page and that a full set of his notes was not disclosed at the time of the December, 2020 hearing. That, he avers, does place a limitation as to the context of the discussion which is recorded.

The judge does not consider Mr Willoughby’s notes perfect, and says he is open to the possibility that Mr Willoughby may well not have written everything down correctly: In particular there is a note stating ‘not allowed in chain of custody’, but neither witness appears to be able to explain that. Miss Checa-Dover states that she did not say that at all, instead saying that she only referred to the ‘evidential chain’ [a common policing term].

Mr Willoughby is adamant that his notes and his recollection are correct about that point. Whilst he states that is the case with considerable confidence, the judge has also taken into account that he may have more faith in his notes and memory than can be justified. In particular, referring to Mr Willoughby’s answers in cross examination to questions concerning the ET1 for the victimisation claim, versus his relevant evidence in his witness statement, both set against his contemporaneous notes. There are inconsistencies and the judge found this evidence ‘quite inadequate’.

Although reliant on memory alone, the judge found that Miss Checa-Dover’s account did withstand scrutiny during cross-examination.

Crucially, the judge noted that Mr Willoughby avers that he recounted the disputed conversation to his instructing solicitor, the Police Federation representative and to Sgt Saeed but none of them, surprisingly, appeared to give evidence at the hearing to give their account of that meeting. There were no notes disclosed to the Tribunal from either Mrs Townsend or the enigmatic ‘Doc’.

The judge also noted that Mr Willoughby states that the ET1 in the second claim was drafted by him utilising a more detailed file note that he prepared for his instructing solicitor, which, he says, was prepared very soon after the meeting, either on the same day, or the day after. It was not produced in evidence.

It is unusual, given that both Mr Willoughby and Miss Checa-Dover find the prospect of one of them not being believed by the judge quite serious, that the discovery exercise in this case is not as complete as it could have been.

The judge also points out that what Sgt Saeed recited in his complaint to the BSB on 25th April 2020 contained material differences between that account and what Mr Willoughby says he told him. In the BSB report he refers to ‘the threat of dismissal’ and the wording he uses around that are at odds with Mr Willoughby’s account now, but are also at odds with the matters he drafted in the ET1 dated 3rd March 2020, which was, obviously, submitted on Sgt Saeed’s behalf, before his complaint to the BSB.

He adds that, in the ET1 to the second claim, the reference to Miss Checa-Dover having preceded the conversation with the words ‘I am instructed to seek’ does not appear within quotes.

Although the judge has some reservations about the quality and accuracy of the notes which Mr Willoughby made, he concludes that, on the balance of probabilities, those notes were taken because those comments, or something close to them, were made to him by Miss Checa-Dover and that is why he wrote them down in his note book.

He does not find, on the balance of probabilities, that Miss Checa-Dover stated that she was ‘instructed to seek findings of adverse credibility. That is not recorded in the notes, and in the light of his other reservations, he does not find that the recollections of Mr Willoughby are sufficient to conclude, again on the balance of probabilities, that those words were said at the time they were both in that disputed discussion.

Having considered the evidence and the submissions from both parties in the round, Judge Knowles concludes, on the balance of probabilities, that a conversation took place in which Miss Checa-Dover said to Mr Willoughby:

  1. That she would seek adverse findings as to credibility; in that it was said ‘Sgt Saeed had lied in his evidence’.
  2. That she was careful never to put to a witness that something is a lie when it could be a mistake and that much of what Sgt Saeed alleged was probably his genuine, but mistaken perception.
  3. However, there were a few matters which he just can’t be mistaken about. He’s telling the truth or he’s lying. If he is found to have lied by a Tribunal, realistically he’s not going to be allowed in the evidential chain.
  4. That will make the Claimant ‘not operational’, if the police inform a criminal defence team that he handled evidence and of that credibility issue.
  5. He would therefore be ineffective as a police officer.

The judge did not conclude that either Mr Willoughby or Ms Checa-Dover are lying, have lied or are liars. There is no evidence, he says, that either of them has lied. In conclusion, he goes on to say, they both have an imperfect recollection of what precisely was said between them on 17th January 2020. But, taken in the round, it is more likely than not that the conversation contained the comments set out above.

Written submissions by the parties post-hearing

The judge also took close account of lengthy and detailed submissions from both parties as to the background to this matter, their key extracts from the evidence and their summary of the applicable law. They are summarised here:

  1. The substantive submissions on behalf of Sergeant Saeed:

‘ The first question is whether what was said was part of “negotiations genuinely aimed at settlement”:-(i)  if not – the without prejudice rule does not apply at all;

(ii)  here, the negotiations had ended with a polite ‘walk-out’ by Mr. Willoughby, who said that terms could not be agreed and red lines could not be crossed:- “It’s a red line. It’s clear we’re not going to settle this, we’ll proceed to trial”

(iii)  his walk-out was interrupted, as he opened the door to leave the room, saying “see you in there”, by the words which Ms. Checa-Dover next spoke;

(iv)  the negotiations had ceased and what followed was not an offer or a further negotiation or invitation to resume. It was not part of “negotiations genuinely aimed at settlement” but “a threat if an offer is not accepted”.

‘The second question only arises if what was said was part of “negotiations genuinely aimed at settlement”:-(i)  was it unambiguous? – yes, it was admirably clear, even if being along the lines of “that’s a nice career you’ve got there – it’d be a shame if anything happened to it …”;

(ii)  did it constitute impropriety? This was not the sort of case in which it could credibly be said that there was a serious chance of Sgt Saeed (or anyone else) being found to be a liar – especially given that Miss Checa-Dover now accepts that she actually had no intention of making any such suggestion about Sgt Saeed. One of the few stark disputes of fact, on the pleadings of the claim, concerned whether Inspector Mick Preston had pointed to his forearm and told Sgt Saeed that he was “more of an ethnic minority” than was Sgt Saeed. There were no other witnesses to that conversation. Even if there was a serious chance of anyone being found to be a liar – it applied equally to both sides, with any consequences applying accordingly;

(iii)  the police’s position was not to obtain adverse findings on Sgt Saeed’s credibility, to question his integrity or to suggest that he would not be considered operational – and this was an improper threat to try to bring him back to the negotiating table by make him fear for his career, operational status and position if he continued with his claim;

(iv)  Miss Checa-Dover knew that Mr. Willoughby was duty-bound to report their conversation to his lay client – whatever she now says. She was not telling Mr. Willoughby something which she thought he already knew but (1) which she had no instructions to go through with and (2) had not included within her prepared cross examination;

(v)  she knew that Sgt Saeed was– in that moment – at, or returning from attending, a hospital appointment about deterioration of his eyesight and that he said that he suffered from anxiety and depression;

(vi)  this threat was not just ill-advised or cruel in the circumstances, it was improper.

In summary, this amounted to:-

(i) the words spoken on 17th January 2020 by Miss Olivia Checa-Dover, counsel for West Yorkshire Police, to Mr. Adam Willoughby, counsel for Sergeant Saeed, were not the subject of the ‘without prejudice’ privilege whether because negotiations had been terminated by the imposition of ‘red lines’ and a ‘walk-out’ or because her words constituted unambiguous impropriety, being at least capable of amounting to an act of victimisation;

(ii) counsel’s words spoken in that conversation are not “immune from suit as made in the course of proceedings” (referring to the notes to the Case Management Summary from the previous Preliminary Hearing) – counsel is not sued and, in any event, the core immunity described in Darker and Others v West Midlands Police (read here) applies to words spoken in a court of justice;

(iii) Ms. Checa-Dover’s words ‘can amount to an act of victimisation’ (by reference to the Order made at the previous Preliminary Hearing); and

(iv) the Claimant respectfully asks that the two claims be heard together.

2. The substantive submissions on behalf of West Yorkshire Police

‘A. Without prejudice communications

Oral communications made during a dispute between the parties, which are made for the purpose of settling the dispute, and which are expressed or are by implication made ‘without prejudice’, cannot generally be admitted in evidence.

The critical question for the ET as to admissibility is where to draw the line between the public policy of encouraging parties to resolve disputes without litigation, and wrongly preventing one or other party from putting their case at its best in litigation.

This is a balancing exercise for the ET. There can be no doubt that that parties entered the claimant’s waiting room for the ‘final’ discussion for the purpose of continuing negotiations that were genuinely aimed at settlement. That is an agreed fact.

B. Unambiguous impropriety

That leaves the Tribunal with the question of whether or not OCD’s actions could amount to unambiguous impropriety as per the case of Unilever plc v Procter & Gamble Co. [2000] 1 WLR 2436 CA at p.2444F. The without prejudice rule will not apply “if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety””. There is no suggestion in the present case of either perjury or blackmail.

Sgt Saeed’s case is put that Miss Checa-Dover threatened or promised to attack a police officer’s credibility so that he will have to be excluded from the evidential chain, rendered non-operational and thus ineffective as a police officer. That is plainly not the case here nor how the evidence played out in the Tribunal.

At worst for West Yorkshire Police, her actions were ambiguous when the evidence is considered in the round, as was that of Mr Willoughby. In addition, there was nothing, even on his evidence, that could be construed as improper.

A finding of unambiguous impropriety, as sought by Sgt Saeed, has profound professional consequences for Miss Checa-Dover. It could well spell the end of her career as a barrister and as sitting as a member of the judiciary. The stakes for her could not be higher. West Yorkshire Police submit that her conduct falls far short of anything amounting to unambiguous impropriety and instead, her actions on either party’s case were entirely normal in context. As alluded to above in respect of Mr Willoughby’s evidence and the concept of brinkmanship, if the Tribunal were to accept his version of the conversation between him and Miss Checa-Dover, her actions may also be construed as brinkmanship.

It is somewhat odd that it does not appear to have dawned on Mr Willoughby the professional consequences potentially both to himself and Miss Checa-Dover. At the Preliminary Hearing held on 11th March 2020, he appeared blissfully unaware that both counsel would need to withdraw from the present case. The word odd has been carefully selected because it must be the case that experienced counsel would have known, yet he appeared not to, that the alleged wrongdoing of fellow counsel may have profound professional implications for them both.

This is not a case where West Yorkshire Police does not defend the making of a threat to one of its own officers. Even if the Tribunal were to accept Mr Willoughby’s evidence, the comments attributed to Miss Checa-Dover may be viewed as a statement of the obvious. The same cannot be construed as a threat.

There would obviously be profound consequences for any professional whose integrity is of the utmost importance to his (or her) role. Miss Checa-Dover knew that, she told the ET that. Furthermore, she told the Tribunal that an adverse finding as to Sgt Saeed’s credibility would, in fact, be problematic to both sides, albeit for different reasons. It flies in the face of common sense and reason that knowing that, she would seek to ‘threaten or promise to attack’ Sgt Saeed.

It is also submitted that regard should be had to whether or not the observations of Miss Checa-Dover were justified. Her evidence has been clear throughout, there were matters of evidence that Sgt Saeed simply could not have been mistaken about. She was pressed in cross-examination by Mr Basu QC on this point.

She was able to give cogent evidence and a specific example of why she believed that her assertion was correct. She pointed to the dichotomy in evidence between Sgt Saeed and Sergeant Patrick.

A dangerous precedent would be set if counsel were not able to speak freely and candidly to one another. It would certainly not accord with the public policy or promoting settlement between the parties.

It is a risk for any party to proceedings that an adverse judicial finding may be made. That is, in it’s purest form, the risk of litigation. It therefore must follow, that in the event of an individual’s integrity being called into question, where integrity of the highest standards is the foremost qualification of that person’s professional standing, an adverse judicial finding may have profound professional consequences.

Analysis of litigation risk is a key component of any settlement discussion.

The material counsel-to-counsel discussion between Mr Willoughby and Miss Checa-Dover was conducted entirely either expressly or implicitly on a without prejudice basis and is therefore privileged.

C. Vicarious liability of the Chief Constable

Section 109(2) Equality Act 2010 provides that employers and principals can be held liable for the discriminatory acts of their agents.

In Kemeh v Ministry of Defence [2014] EWCA Civ 91, Elias LJ held that liability for an agent’s discriminatory acts is governed by common law principles. In utilising the term ‘agency’ in anti-discrimination legislation, Parliament must have intended that it would have its ordinary common law meaning, rather than being susceptible to some wider interpretation.

The Kemeh approach was followed in UNITE the Union v Nailard [2018] EWCA Civ 1203. Accepting that, as per Elias LJ in Kemeh, s.109(2) Equality Act 2010 would only apply where “the agent discriminates in the course of carrying out the functions he is authorised to do”.

There is a material difference in the evidence given by Mr Willoughby and Miss Checa-Dover in that he alleges she informed him that she was acting on instructions. That is not the case, nor is it accepted by the police that she said that. She was not acting on police instructions; this is confirmed by the evidence of Mrs Clegg. The question must then be considered in the context of Miss Checa-Dover’s implied authority as Counsel for West Yorkshire Police.

It is trite that Counsel Ms Checa-Dover was engaged under the terms of The Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012 – (Updated for the GDPR in 2018) as referred to in Rule rC30.9c of the BSB Handbook. Clause 8.1 provides:

“8.1 The Barrister will exercise reasonable skill and care in providing the Services. The Barrister acknowledges the existence of a duty of care owed to the Lay Client at common law, subject to his professional obligations to the Court and under the Code.”

It cannot be said that she was acting with authority, either actual or implied, in either threatening or promising to attack Sgt Saeed’s credibility. Indeed, the same defies common sense. There is, perhaps, no better example of this than Sgt Saeed’s reliance on the personal support of John Robins by reference to text messages received by the junior officer from the chief constable.

In Catholic Child Welfare Society v Various Claimants (FC) [2012] UKSC 56, the Supreme Court held that a religious order was vicariously liable for sexual abuse committed by its brothers while teaching at a school. This was despite the fact that the institute did not manage the school and the brothers were not employees of the institute. The Supreme Court held that there was a two-stage test to imposing vicarious liability. Firstly, whether the relationship between the institute and the teaching brothers was sufficiently akin to that of employer and employee to impose vicarious liability. Secondly, whether the institute had placed the brothers in a position so as to further the institute’s own interests which increased the risk of abuse. The court found both aspects of the test satisfied and accordingly imposed vicarious liability on the institute for the brothers’ actions.

Miss Checa-Dover was not instructed by the police to seek adverse findings as to Sgt Saeed’s credibility. “…I must be clear – I was not told to say this by anyone. I never told Mr. Willoughby that I was acting on instruction because I wasn’t.”

Mrs Clegg is equally clear: “I did not instruct Ms Checa-Dover to obtain adverse findings on the Claimant’s credibility, question his integrity or suggest that he would not be considered operational.”

Miss Checa-Dover was acting in accordance with regulatory framework, her duty to both her professional and lay clients and the Tribunal. Within that framework, she was in business on her own account. However, she was not instructed by West Yorkshire Police to seek adverse findings in respect of Sgt Saeed’s credibility that may have a profound adverse impact on his ability to perform his duties as a police officer. It cannot be said that either the relationship between Miss Checa-Dover and her client, or her acting of her own volition satisfies the two-stage test outlined in Catholic Child Welfare Society.

Other legal authorities were cited in support of that proposition, including Barclays Bank Plc v Various Claimants [2020] UKSC 13 and William Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, in which the Supreme Court concluded that the supermarket chain Morrisons, should not be held responsible for the actions of a disgruntled employee who wrongfully and purposely uploaded the personal data of almost 100,000 other employees on a publicly accessible file sharing website. The decision focussed on the fact that at time of the disclosure the employee had been carrying out a personal vendetta against Morrisons and was not engaged in furthering the course of the company’s business. The decision in Morrisons could be seen as being at odds with earlier decisions. The SC considered that the disgruntled Morrisons employee was going beyond his authorised activities (which included passing payroll data to external auditors) such that he was pursuing a personal vendetta and was not engaged in Morrisons’ business.

If the Tribunal was minded to make a finding of unambiguous impropriety against Miss Checa-Dover, it must therefore follow that West Yorkshire Police cannot be held responsible for her actions.

The conduct complained of, on any reasonable interpretation, was not because of a protected act. Her comments relate to the manner in which Sgt Saeed was pursuing his claims.

Sgt Saeed is not protected under the provisions of s.27 Equality Act 2010 if the detriment is due to the manner of performing the protected act rather than the protected act itself, as in the case of HM Prison Service v Ibimidun UKEAT/07/DA.

Mr Jones says that there is no case law of which he is aware that specifically relates to Counsel and whether or not Courts and Tribunals have been willing to pierce the veil of vicarious liability. Dijen Basu QC suggests it would be absurd if “barristers do not fall within the scope of s.109(2) and (3) EQA 2010..”. Respectfully, Mr Jones disagrees. The Tribunal is bound by the principles of agency in common law for the purposes of which, the Tribunal has been directed in particular to the cases of Kenmah and Barclays Bank. Those principles apply equally whether considered in the context of Barristers, Solicitors, Doctors or any other professional advisors.’

Conclusions by the judge

What was the content of the relevant discussion between Mr Willoughby and Ms Checa-Dover on 17 January 2020?

As set out in his findings of fact, he concluded that a conversation took place in between Miss Checa-Dover and Mr Willoughby on those terms at paras 1. to 5.

Was that conversation part of a without prejudice conversation?

Mr Willoughby’s evidence that without prejudice discussions had concluded, and therefore that nothing which followed were part of without prejudice discussions, was found by the judge to be ‘quite absurd’.

He states that through saying to Ms Checa-Dover that “It’s a red line, It’s clear we’re not going to settle this, we’ll proceed to trial, see you in in there” he left Ms Checa-Dover in no doubt at all that without prejudice discussions were at an end.

That, from his perspective, without prejudice discussions were concluded may well have been his true feelings at the time and he was entitled to hold them.

However, his belief that he may unilaterally conclude without prejudice discussions is mistaken, says the judge. Who really has the last word, asks the judge? A party to litigation may make representations without prejudice at any time and whether or not the other party has stated they consider the without prejudice discussions to be at an end (which I note Mr Willoughby had not expressly done so, rather he had expressed an opinion as to the likelihood of a deal at that point in time).

Without prejudice communications frequently arrive unsolicited and in circumstances where they were never sought in the first place. There is nothing to stop a party, in principle, seeking and continuing to seek settlement of an issue with another party who does not share that ambition or desire.

Mr Willoughby says it was clear that the discussions were at an end because of what he said and because he was walking out of the door. However, he returned to the table at which Miss Checa-Dover was sitting. Why, the judge asks? If the without prejudice discussions were at an end, as he suggests, why did he act contrary to that position by returning to sit with her? He does not suggest that he clarified with Miss Checa-Dover whether or not what followed in their discussions was on or off record, or was part of their settlement discussions as opposed to preparation for the beginning of the hearing.

Why does he not state to her that he is no longer talking off record in without prejudice discussions and everything that follows is on record and not without prejudice? It would be forgiving to suggest that Mr Willoughby was acting upon assumptions. However his interpretation of events, in retrospect, is ‘in my conclusion significantly wanting’, says Judge Knowles.

In the judge’s view, the situation concerning the “clear” end of without prejudice discussions may well have been within his thoughts, but they would not have been clear to anyone else based upon his actions: Mr Willoughby and Miss Checa-Dover were in that room to discuss settlement of this case on a without prejudice basis.

Was the conversation genuinely aimed at settlement?

Mr Willoughby has accepted in evidence that the point that Mrs Checa-Dover made to him regarding the possible fate of Sgt Saeed was a litigation risk. It is normal in without prejudice discussions to discuss such risk. When pressed on this point he stated that it is the way in which this was presented as a fait accompli that he objected to.

He appears to have brought the discussion to its peak at that point, concluding with “see you in there”. A retort which was brief and missed some interim procedural points does not in the judge’s mind seem in any way incompatible with the principles of a discussion genuinely aimed at settlement.

Mr Willoughby’s evidence is that he was at that point walking out of the door. A brief worst-case expression does not appear out of the ambit of how these discussions might progress in the ordinary course of litigation. He did, also, choose to turn around and sit back at the table and listen to what Miss Checa-Dover had to say.

He appears not to have been equipped [or sufficiently experienced in policing matters] to answer Miss Checa-Dover’s assertion that Sgt Saeed would not be operational or effective. This is a matter he recorded in his notes as something he needed to “(check)”. Had he been so equipped, the discussion may well have not concluded in being interpreted as the fait accompli that he complains about. Part of the fait accompli is that he was unable to robustly put the matter into its true procedural place.

Miss Checa-Dover did distinguish between accusing someone of lying and putting to them matters about which they must be mistaken, and the care she would take. It would, nonetheless, be a litigation risk that a Tribunal might, possibly, listen to the evidence and find something stronger in term of the conflict upon the evidence.

By the same token, the judge has taken into account that the Panel may have made findings about the police witnesses, as to the strength of their evidence or, indeed, their credibility.

Finally, in noting the importance of the contemporaneous record, the judge has highlighted how Mr Willoughby noted the matter the matter at the time. His note records “(??) – tactic to force US?”. In so doing he rules that these discussions were nothing more than that; tactical discussions concerning litigation risks. Albeit, at an extreme edge, but, nonetheless, accepted to be real risks, genuinely aimed at settlement, he finds.

Were Miss Checa-Dover’s comments an unambiguous impropriety or a threat?

In the judge’s conclusion, the exception to privilege which arises in consequence of an ‘unambiguous impropriety’ is not engaged on the facts of this case. He considered the exception to be somewhat a high watermark, saying: The public interest in the without prejudice rule is very great, to be sacrificed in truly exceptional and needy circumstances only.

He goes on to say that Miss Checa-Dover’s position, however blunt or robust, could not be described as improper, in the sense that it may lead to perjury. She made a point which Mr Willoughby concedes was a litigation risk to the Sgt Saeed.

It is not an abuse of the privilege to tell the truth, Judge Knowles says. ‘Miss Checa-Dover could not be accused of having said anything other than what was the truth; Sgt Saeed risked adverse credibility findings in the litigation, in that he had lied’.

The merit of that assertion is a matter that Mr Willoughby could, as experienced counsel for Sgt Saeed, have well handled. But he appears to have countered it only to note that it was a point he should “(check)”. The judge doubts that counsel experienced in handling the point Miss Checa-Dover made would have left that conversation with such interpretation of what she was saying, because they would have been capable of positioning an argument put “at its height” or describing a “worst-case” in its realistic and balanced place.

The judge does not consider that what she said about Sgt Saeed was a threat. She stated, as was recorded by Mr Willoughby in his notes, that that she would “seek” adverse finding as to credibility and that Sgt Saeed had lied. Miss Checa-Dover did not make a statement that Sgt Saeed would be hurt or harmed in not settling the litigation, the judge says.

In the judge’s view, the comment is no different to the comment Mr Willoughby made earlier in the discussions to Miss Checa-Dover, that if the matter were not settled then Sgt Saeed would bring a claim of disability discrimination against West Yorkshire Police.

That, he says, is similarly not a threat because it is not a statement that the police will be hurt or harmed in not settling the litigation. It is not a statement that the Respondent “will be” hurt or harmed, it is simply a statement that a claim may be made which could possibly have that outcome.

References in cross examination and in written submissions to “mafia threats” were highlighted. But, the judge says, a statement of what might happen in one’s ordinary recourse to legal proceedings is simply not, by any measure, akin to a “mafia threat”.

The judge notes the aptness of this paragraph from a well-quoted legal authority, Unilever plc v Procter & Gamble Co. [2000] 1 WLR 2436, CA : “At a meeting of that sort the discussions between the parties’ representatives may contain a mixture of admissions and half-admissions against a party’s interest, more or less confident assertions of a party’s case, offers, counter-offers, and statements (which might be characterised as threats or as thinking aloud) about future plans and possibilities.”

In conclusion, Judge Knowles finds that Miss Checa-Dover’s comments to Mr Willoughby on 17th January 2020 during the disputed part of their conversation were neither an ‘unambiguous impropriety, nor a threat.

Judicial proceedings immunity

The judged concurred with the written submissions of Dijen Basu QC that judicial proceedings immunity is not engaged because the relevant conversation between Miss Checa-Dover and Mr Willoughby took place outside the Tribunal. That would not prevent Sgt Saeed raising the matters if the he was not otherwise prevented from doing so by way of them being legally privileged under the without prejudice rule.

The police did not, specifically, dispute this point in their own submissions.

Can words spoken by their instructed Counsel amount to victimisation West Yorkshire Police?

The judge again concurs with Mr Basu QC in that such comments may amount to victimisation in certain circumstances – and that the law of agency may or may not provide an escape for Counsel’s instructing party. That would be a matter to proceed to a full hearing, if Sgt Saeed was not otherwise prevented from raising them.

The impact of the judge’s conclusions on the victimisation claim

The conversation between Mr Willoughby and Miss Checa-Dover cannot be relied upon by Sgt Saeed to claim that he was victimised contrary to Section 27 of the Equality Act 2010.

Accordingly, the claim of victimisation is for that reason not well founded and fails.

The remainder of Sgt Saeed’s claims under the second claim, discrimination related to his protected characteristic of disability, are not affected by this preliminary judgment; they shall proceed.

The disability claim is ordered by Judge Knowles to be consolidated with the first claim. The representations of both parties as to the benefits and risks of consolidation, were considered by the judge but, in the round, given that Sgt Saeed is describing an ongoing employment history, consolidating the claims would mean that the context of his considerable employment record does not have to be examined twice.

Postcript

A ‘private’ telephone conference between the presiding judge and representatives of the two parties is scheduled to take place in April, 2021. Presumably to progress case management matters, including listing of a final hearing. It is so secret that Leeds Employment Tribunal has been unable to provide a date, when requested.

The same Tribunal office was unable to provide an accredited journalist, the only one to have covered this employment dispute from its outset, with a copy of a public judgment. A wait of almost two weeks ensued before it was published on the gov.uk website.

Issues over rights of inspection of the hearing bundle by a court reporter (or, indeed, any member of the public) are also troubling. Access was wrongly denied by a Tribunal clerk on the day the hearing should have commenced in January, 2020.

Open justice is fundamental to a democratic society, but that news does not appear to have permeated through to the 4th Floor at Albion House, Leeds.

Page last updated at 1245hrs on Friday 19th March, 2021.

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Kerry Perkins -v- West Yorkshire Police

Please Note: An Order under Section 4(2) of the Contempt of Court Act has been applied to the reporting of this case. A copy has been posted in the court precinct and in the press office. Details of the restriction cannot be published, but may be obtained from the county court office. The Order has been sent to the Legal Department of the National Union of Journalists with a view to a challenge.

This court report is arranged in reverse chronological order. Latest post appears at the top. Daily updates, where possible, will be provided at lunch adjournment and after court rises at the end of each sitting day:

Tuesday 3rd December, 2019

HHJ Neil Davey QC has found in favour of West Yorkshire Police. ‘Both causes of action fail and the claim is dismissed’. He set out his reasons in a detailed judgment handed down orally in open court, taking just under an hour.

For the second time in just over two months, I’ve sat in this same court in Bradford and listened to a judge deliver ‘cherry-picked’ findings that appear to be from a different trial to the one I’ve sat through from start to finish. The other was Dr Abdul Rashid -v- WYP and the full report of that trial can be read here. That judgment is presently the subject of a permission appeal to the High Court. Manifest, and admitted, breaches of policy, procedure and, arguably, the law were all overlooked. Most incredibly, the judge accepted the proposition that the misconduct of PC Perkins (as she was then), which received the minor sanction of a written warning.

So, West Yorkshire Police remain at large, as an organisation, to cut a swathe through more or less any piece of legislation, such as PACE; CPIA; DPA; and FOIA, as they frequently do on the watch of this court reporter. Authorised Professional Practice, Code of Ethics and their own internal policies are, also, often treated with scant regard. That is a formidable, but not exclusive list. It does not serve the public interest at all well if the judiciary see, as part of an unspoken public policy, to not only ‘whitewash’ these failings, but lionise those officers at the very heart of such breaches. There may be the noble intention of ‘maintaining public confidence in the police service’ but all it does is, conversely and perversely, undermine confidence in the civil and criminal justice systems.

The bereaved families and survivors of the Hillsborough Disaster, and at least two of the journalists who attended Preston Crown Court for all or much of the proceedings, in the re-trial of ex-Chief Superintendent David Duckenfield, are of much the same mind. Whilst the scale of the Bradford trial involving West Yorkshire Police, and what was in issue, is miniscule in comparison to Hillsborough, the principle is the same: The State protects its own.

No written version of the judgment, either in hard copy or electronic form, was provided to either the police lawyers, Miss Perkins’ legal team or the press. An anachronism that has no place in the present court system and smacks of laziness on the part of a judge, whom, given his fine reputation, really should have done better. Particularly, as hearing this claim is a post-retirement sinecure without the huge caseload that besets sitting circuit judges.

Central to the judge’s findings was the proposition that a ‘major criminal investigation’, involving twenty-one officers, many of senior rank, into Miss Perkins was necessary and proportionate, and that justified the covert surveillance and obtaining over a year’s worth of data from the Automatic Number Plate Recognition (ANPR) system. The suspected offence was claimed to be Misconduct in Public Office, one of the most serious non-violent offences on the statute book with, consequently, a very high evidential threshold. It carries a maximum sentence of life imprisonment. That proposition, and the evidence heard from the various police witnesses on that topic, notably retired inspector John Rogerson, viewed from the press seats at least, was nothing short of preposterous. The judge failed to note that the concept of the Misconduct in Public Office offence never featured in any of the contemporaneous, substantive, extensive, wide-ranging, police correspondence or notes, or in Rogerson’s witness statement filed and served in January, 2019. The first Miss Perkins’ legal team heard of this allegation was during Rogerson’s live witness evidence last week.

Despite this, one might think, catastrophic flaw and a generally unconvincing witness box performance throughout (he was shaking like a leaf for the last twenty minutes of it), Rogerson was accorded star witness status by the judge. Along with Karen Gayles, a retired superintendent who signed the ANPR authorisation. The latter features elsewhere on this website. The scandal outlined there, and Mrs Gayle’s role in it, lay to waste much of what she expounded from the witness box (read more here) and does not assist her reliability, or credibility. However, emboldened by that evidence she gave in Court 5 at Bradford Law Courts she may now emerge from her shell and renew her pursuit of her former colleague, Mabs Hussain, now an assistant chief constable in Greater Manchester Police, with the same rigour as she applied to Miss Perkins – and assist with establishing the truth of what appears to be a very troubling matter.

Permission to appeal the judgment, submitted orally by Sarah Hemingway on behalf of Miss Perkins, on the grounds that policies and guidance were not followed on surveillance, was refused by the judge. Ms Hemingway represented her client with commendable tenacity and, together with counsel for the police, Olivia Checa-Dover, was warmly commended by the judge for the assistance given to the court throughout the proceedings.

Costs in the sum of £1,000 were awarded against Miss Perkins. West Yorkshire Police had filed a costs budget of around £60,000 with the court. The taxpayer meets the shortfall, on top of the estimated internal costs of £100,000 that the investigation, and all that followed, has cost the police.

Kerry Perkins said after the verdict: “As a medically retired police officer with 16 years service, the judge’s one-sided assessment of the my former colleagues’ live evidence and his interpretation of the applicable law, guidance and policy is seriously troubling. The possibility, and funding, of a permission appeal to the High Court in Leeds is presently under consideration. I will not be making any further statement until that process is exhausted’.

Monday 2nd December, 2019

Court is not sitting today.

Operation Lapmoor has been referred to a number of times in these proceedings, in open court. In response to a freedom of information request made publicly, via the What Do They Know website, in September 2018 (read full correspondence here), West Yorkshire Police, after the usual stalling tactics, said they could neither confirm nor deny the existence of this investigation, relying on exemptions at Sections 30(3), Section 31(3) and Section 40(5) under FOIA.

Disclosure of the following information was sought:

1. Name of Gold Commander, or names of Gold Group.

2. Name of Senior Investigating Officer.

3. Dates upon which they were appointed.

4. Date operational codename requested.

5. Date police operation commenced, concluded.

6. Policy book, or log. Sometimes known as Blue or Gold book.

a. Date of first entry

b. Date of final entry

c. Number of actions

7. Number of officers deployed on the operation.

It is now known that there was no Gold Commander; no nationally accredited Senior Investigating Officer appointed; the investigating officer was acting inspector John Rogerson, a neighbourhood police officer; there was no policy book kept where decision makers recorded their actions and the rationales for them; the investigation appeared to commence in April, 2014 and completed with a successful appeal by Kerry Perkins against a misconduct meeting finding in April 2015; it appears that the number of officers deployed is TWENTY-ONE, the eight who gave live evidence plus Detective Superintendent Simon Bottomley, Superintendent Pat Casserley, Chief Inspector Suzanne Akeroyd, Chief Inspector Jim McNeil, Detective Chief Inspector Elizabeth Belton, Inspector Dave Bugg, Inspector Grant Stead, Inspector Ian Croft, Detective Constable Iain Harper, Reviewing officer Sarah Morris. The latter seven all worked in the Professional Standards Department either at HQ or District. Senior Human Resources officers, Helen Parkinson, Jayne Christopher, Judith Walker all appeared to be closely involved with Sergeant Astill and A/Inspector Rogerson in the investigation. In summary, there were ten senior officers involved and eleven of lesser ranks: four superintendents, three chief inspectors and four inspectors. All ranged against a part-time, female, disabled police constable who was also a single mother with two small children.

Part of the police case in defending this claim is that the Lapmoor investigation, into a fellow officer’s horse riding hobby, and dog walking, both admitted by police to be in her own time, was lawful, necessary and proportionate.

To her credit, the acting chief constable at the time, Dionne Collins, also became personally involved after a heartfelt plea from Miss Perkins. But, to be fair, it cannot be said that the chief was involved in the investigation.

It does not go to the evidence, or the determination of the Kerry Perkins claim by the judge, but one might argue that WYP hid behind three FOIA exemptions and a misconceived public interest test to conceal from view yet another of their investigations that didn’t even meet the basic tenets of approved professional practice. Another recent and glaring example was Operation Thatcham (read more here).

Conversely and perversely, a freedom of information request seeking almost exactly the same information was answered in its entirety (read more here).

Again, it does not go to the evidence in this claim, and the incidents occured well after the material times in the claim, but John Rogerson’s brother, David, who works in the same police staion at Havertop, near Normanton, featured in this widely shared scandal (the YouTube clip has received approaching 1 million views). Many officers at Normanton refused to identify David Rogerson, including his brother and a number of PSD officers, prior to an information being laid at Kirklees Magistrates Court for an alleged assault on a member of the public in the police station precincts in full view of the CCTV cameras. The district judge issued a warrant against Rogerson, he was summonsed and a trial date was fixed. The Crown Prosecution Service, under relentless pressure from both the Police Federation and PSD, took over the case two days before the trial and discontinued it on public interest grounds. The private posecution had met the evidential part of the Full Code Test. The full story can be read here.

Friday 29th November, 2019

Having heard all the evidence in the claim, the last live testimony having concluded on Thursday aftenoon, closing submissions were heard by the judge, HHJ Davey QC, from counsel for both parties. Sarah Hemingway representing the Claimant, Kerry Perkins, and Olivia Checa-Dover appeared for the Defendant, West Yorkshire Police. Judgment will be handed down in open court next week.

During the evidence, HHJ Davey will have formed his own view on the credibility of witnesses and the reliability of the facts as presented on behalf of Miss Perkins and the police. Eight serving or retired officers gave evidence for the Defendent and one retired police officer, who was also a Police Federation representative, gave evidence for the Claimant.

Ms Hemingway submits that it remains a fundamental right in this country to go about one’s business free from state surveillance, unless such action can be lawfully justified. Furthermore, one’s personal data must not be unlawfully processed and private information must not be misused. Safeguards protecting such principles must be effective in any democratic society.

The court is being asked to make findings on two issues in this case: (i) whether there has been a breach of the Data Protection Act 1998 in relation to a police investigation into the private life of Miss Perkins, a part-time police officer, following a horse-riding accident in September 2013; and (ii) whether the police misused her private information.

It is noteworthy, submits Ms Hemingway that it has not, at any time, throughout the investigation into her hobby, or since, been asserted by the police that Miss Perkins was horse riding when she should have been at work. This is an activity that was always done in her own time outside of agreed working hours.

It should be noted that further evidence as to the extent of the police investigation into Kerry Perkins has only come to light at trial this week. Firstly, she was not aware that retired inspector, John Rogerson (who gave evidence on Tuesday and Wednesday), had attended at her children’s school, or telephoned the school, to make enquiries about her children. This was understandably upsetting for the Claimant, given her valid concerns about the impact of this investigation on her children. Secondly, the subject matter of the Public Interest Immunity evidence given by two surveillance officers had a considerable impact on her, given that she thought that the police had been absolutely clear, following an number of data requests and conduct complaints, that there had been no other forms of surveillance done on her. Thirdly, the lead surveillance officer’s evidence (heard on Wednesday) that he had entered onto the private land behind her home, in the early hours of 10 June 2014 and in order to identify her vehicles, while she and her two young children were sleeping in the house, without any lawful authority to do so, has caused further upset.

This case, Ms Hemingway went on to say, appears to be ‘exceptional’ in that no officer giving evidence this week has been able to say with any real certainty that they know of any more than one other misconduct investigation that has involved such methods of surveillance on a serving police officer. James Carter (who gave evidence on Wednesday) of the force’s Central Authorities Bureau went so far as to say that there may have been one case every 4 – 5 years, revised to 3 – 4 years, but was unable to give any specifics. The consequence, therefore, of any finding in favour of the Claimant is unlikely to extend beyond the specific facts of this case, given its highly unusual features.

The police have a duty to maintain an efficient and effective police force, consequent to sections 39 and 39A of the Police Act 1996. Ms Hemingway submitted that suspected breaches of the Code of Ethics must be dealt with by way of an investigation, but only to the extent that any formal investigation is lawful and necessary for a legitimate purpose and is not excessive. The investigation in this case was initiated (by Rogerson) due to concerns that Miss Perkins was suspected of horse riding and driving more than she professed to be able to. In relation to horse riding, Miss Perkins never sought to hide the fact that she had got back in the saddle after her accident and rode, occasionally, in her spare time when she felt up to it. She had posted pictures about it on Facebook (a social media wesite), with some of her Facebook friends, quite naturally, being police colleagues. She stabled her horses at the same place as her friend Inspector Lynne Proctor. And when approached by a local community support officer, Ken Short, she openly told him that she was out on her horse. A statement about this was, eventually, taken from PSCO Short in October 2014. 11. Had Miss Perkins been asked by Sgt Astill (now inspector), Detective Sergeant Bainbridge (now chief inspector), Rogerson, or any other officer, she would have told them that she rode her horse. Yet, each police officer, when cross-examined, admitted they had not sought to take make that obvious, and reasonable, enquiry. Indeed, Ms Hemingway recalls, Rogerson contended in his evidence that he would not have even contemplated doing so, as he ‘would have needed to gather as much information as possible as part of the investigation in order to put all the evidence to Miss Perkins and ask questions under caution’. Other witnesses, including Mr Carter, and retired superintendents Simon Whitehead (who gave evidence on Wednesday) and Karen Gayles (who gave evidence on Thursday), operated on the assumption that she must have been asked, but had not given an answer.

It was further submitted by Ms Hemingway, the police’s own Occupational Health Unit provided a medical opinion (by Dr Williams, Force Medical Advisor) that, “When her symptoms allow, there is no medical reason to debar her from pursuing this activity” and went on to advise “In periods when Kerry is subject to a flare-up of back symptoms I anticipate that horse riding would not be advised, nor indeed possible in the event of a flare-up being severe”. However, that simple request for OHU advice was not made by Rogerson until at least five months after the investigation began. Counsel added to this point by saying that, had these simple initial steps been taken at the outset, it would have negated any reason to conduct an investigation for the purpose of establishing whether Ms Perkins was horse riding, where she kept her horses or whether a back injury would necessarily preclude her from horse riding. Miss Perkins accepts, had those enquiries been made and she had refused to answer, then that would, of course, have been a different matter. But it is submitted that the police cannot reasonably justify such an exceptional Professional Standards Department misconduct investigation, as did take place, in the absence of such attempts to obtain information in a less intrusive manner. In relation to driving, Ms Perkins maintains that she had always explained when questioned that she had good days and bad days as a result of flare-ups of her back condition and that made it difficult for her to commit to commuting to Castleford on every duty day. She explained that she could drive on a longer journey if having a good day but would be limited if having a bad day, which she was unable to predict. Ms Perkins disputes that she ever said that she could not drive any distance, which is how it was presented to other officers involved in the investigation by Mr Rogerson. It is submitted that the UPP process was the most appropriate way to deal with any concerns that the police had about Ms Perkins’ return to her regular part time operational role at Castleford. Nonetheless, even if it was necessary to conduct any formal investigation into her driving abilities, any such investigation, which may well have involved checks on the PNC for DVLA and MID information and reference to ANPR must have been conducted in compliance with the DPA and common law. It is submitted that there were significant contraventions in this case.

Such checks about car details and insurance details were done on both vehicles belonging to Miss Perkins as part of the Rogerson investigation, providing basic data required for Operation Lapmoor (under the Covert Activity Policy) and the ANPR data trawl and analysis.

Ms Hemingway says the answers to the three specific questions is, therefore, contingent upon the learned Judge’s finding in relation to the ANPR and surveillance issues.

(1). In respect of ANPR was processing done lawfully? The written authority was not clear and did not in fact, lawfully, authorise the ANPR data collection, unless the court accepts the evidence of John Rogerson that he was conducting a major investigation into Misconduct in Public Office (which carries a maximum sentence of life imprisonment). Mrs Gayles’ evidence was that such a major investigation was never mentioned by Rogerson during the briefing and, given that such a purpose was not mentioned in his witness statement or in any other relevant documentation, it is submitted that it is unlikely that was the stated purpose of the application. The fact that PSD felt urged to make enquiries as to whether ANPR searching can be used in a misconduct investigation indicates that the law was not clear. Moreover, the answer to that question was ‘There is no definitive answer which states ‘yes’ or ‘no’ specifically in relation to using recorded ANPR data in a misconduct investigation’. The local WYP policy provides that ANPR can be used in the investigation of crime. It does not refer to investigations into alleged breaches of the code of ethics, or any non-crime related investigations. The Home Office National ANPR Standards states access to data must be solely law enforcement and investigation purposes. Such investigations to fall within three main categories: Major investigations, serious investigations, priority and volume investigations. Mrs Gayles stated that she considered this case to fall within that third category, which includes ‘non-crime issues such as anti-social behavior, vehicle excise offences, road traffic offences and missing persons’. That document does, however, make reference to investigations into alleged breach of the Code of Ethics. It is the only place in the document, or any other relevant policy, that does so and it is unclear how that fits with the three main categories set out above. Nor does it specify the age of the data to be mined as a result of the authority. The Surveillance Camera Code of Practice covers ANPR data. It is submitted that, contrary to Guiding Principles, the rules were not sufficiently clear on who can gain access and for what purpose, when the national standards were considered in conjunction with the local policy and the applicable authorisation form.

(2) Was the processing of data done for a legitimate aim? John Rogerson stated (repeatedly) that the aim of obtaining the ANPR data was in order in investigate Miss Perkins for a major crime, namely Misconduct in Public Office. That was the box that was ticked on the relevant form and, he says, that was the thrust of the briefing he gave to Mrs Gayles, the authorising officer. Mrs Gayles refutes that a major investigation into Misconduct in Public Office was ever discussed in the briefing. Instead, she proceeded on the basis that the investigation was in order to establish whether there had been discreditable conduct/dishonesty on the part of Miss Perkins. However, she accepted undr cross examination that the authorisation form does not reflect that purpose.

(3) Was processing of the data done adequately, relevantly, not excessively? Even if the police can properly rely on the investigation into alleged breaches of Code of Ethics, there is no indication as to how much data (for example, age of data) can be accessed – that box in the table on the (wrong, out of date) form used by Mrs Gayles was left blank. She stated that as authorising officer it would be open to her to determine the age of data to be collected and she would ensure that the scope of the request was proportionate. She authorized the amount of time requested by Rogerson, that is to say, more than one year. It is submitted that, in the circumstances of this case, it was not proportionate to harvest over a years’ worth of data, in any event, but certainly not dating back to a date prior to the injury that occurred on 1st September, 2013. Principle 3 of the Data Protection Act, which is addressed specifically in the WYP local policy on data protection, advises ‘When police computers are designed, consideration is given to information to be held and any forms to be used in collecting it. So long as you stick to information the computer is designed to hold, it would be difficult to argue it is excessive or not relevant’. It is submitted that the relevant form in this instance did not provide for ANPR data collection of over one year in relation to misconduct investigations because it was not considered in developing the local policy and as such the authorisation was not relevant to the data that was collected. It is further submitted that the data, once collected, was then improperly disclosed as part of a misconduct interview on 6th November. 2014.

OPERATION LAPMOOR/ CAP ‘Reconnaissance’ by Rogerson on 29th April, 2014. Whilst  Rogerson initially stated that he had ‘driven past PC Perkins’ home address’, when questioned it became clear that he had parked outside Ms Perkins’ home to observe for a unspecified amount of time, he had then driven to her children’s school (though could not recall whether he attended the school to make enquiries about her children or had telephoned the school), and he had also driven around the area in an attempt to locate the riding stables. It is submitted that enquiries made at the school were unlawful as it constituted collateral intrusion upon the private lives of her young children.

Surveillance on 10th June 2014:

(1) Was processing done lawfully? Ms Hemingway submits that, in this case, the CAP did not indicate with sufficient clarity the scope and manner of exercise of the discretion conferred on the police to conduct surveillance and to store data pertaining to Miss Perkins’ private life. According to Mr Carter’s evidence, the CAP has since been amended, by the police, in order to make it clear. It is submitted that Mr Whitehead did not understand the policy, in particular the distinction that has been made by the police in that Directed Surveillance should come under the Regulation of Investigatory Powers Act (RIPA) regime. This is not clear in the CAP policy and he, unwittingly, made an authorisation under the CAP for ‘Directed Surveillance’. It is submitted on behalf of the Claimant that the domestic legal framework, outside the RIPA framework, falls back on to the DPA 1998. In the specific circumstances of this case, it was entirely unclear in reference to the policy under what circumstances the police could resort to such covert measures, which do on the face of it appear to engage Directed Surveillance. The CAP is neither legally binding, nor directly publicly accessible. It, therefore, follows that the interference in this case was not in accordance with the law and thus an Article 8 violation. In such circumstances, it also follows that the interference was in breach of the DPA principle of being in accordance with the law. Furthermore, it is submitted that the process of applying for authorisation under the CAP was not even done in compliance with the force’s own procedures. Mr Carter’s evidence was that PSD investigations under CAP are ‘Level 2’, along with major investigations. Such a level of authorisation would require an Authorising Officer to make the decision as to whether to grant authority on an objective basis in a quasi-judicial capacity. However, in this case, for reasons specific to this case, it was decided that District Superintendent Whitehead would authorise the CAP.

(2) Was processing done for a legitimate aim? The ostensible aim of the police, in conducting the Lapmoor operation, was in pursuant to the duty to maintain an effective and efficient police force, which is of course a legitimate aim. Steps taken in that regard, such as the Unsatisfactory Performance Process (UPP), would, no doubt, be justifiable under that stated aim. However, there is evidence in this case that the purpose in setting up Operation Lapmoor went beyond that legitimate aim. The purpose in this case was set out to some extent in the email from Detective Inspector Grant Stead (who did not give evidence) to Stuart Bainbridge (who gave evidence on Wednesday), dated 4th October, 2014. It was suggested that it would be an ideal opportunity for observation training to be utilised, for a successful operation to be used as an example to how to get the message across to the wider force, and to illustrate how PSD assist District with such matters. Such objectives fall outside of the ‘legitimate’ aim and illustrate that the investigation was not motivated solely by a desire to address the specific issues arising in Miss Perkin’s case.

(3) Was processing done adequately, relevantly, not excessively? In any event, Ms Hemingway submits that the nature of the covert surveillance operation was disproportionate in the circumstances. In emails sent to and from John Rogerson on 10/6/14 and 12/6/14 respectively [E:21-22], it is clear that a little research on open source material / google search was sufficient to find the information sought and rendered operation Lapmoor unnecessary. Such a reasonable step to ‘investigate’ such a matter was not done. Such information had been available on open sources, yet instead a decision had been made to obtain a broad ranging authorisation for covert surveillance, involving not insignificant policing hours (including the time it would have taken otherwise busy police staff and a senior officer to consider and draft the appropriate paper work, plan the operation, allocate the resources as well as over 9 hours of police hours in conducting the surveillance on 10/6/14). 42. On any reasonable analysis, it is submitted that such a step was disproportionate and excessive in the circumstances. Information obtained from friends and associates 43. Speaking with friends/ associates at the riding club constituted an interference with Ms Perkins’ Article 8 rights private life. Such steps were excessive and unnecessary given that such information could have been obtained from the outset by simply asking Ms Perkins. Information regarding Ms Perkin’s health and disability 44. This information constituted sensitive personal information under the DPA 1998 and as such had to comply with at least one of the conditions in schedule 3. It is accepted that information relating to Ms Perkins’ health and disability were required in order to make an assessment and assist her back to work, part of which would have included providing a suitable workspace (lumbar support chair and riser desk), albeit that took over a year to source. 45. It is contended that the police were not entitled to medical records from the GP in order to make an assessment in relation to a misconduct investigation. Rather, the reports from OHU and the report from the GP received on 10/11/14, attaching the MRI scan report, was sufficient for the purposes of the misconduct proceedings. 46. Such information in relation to Ms Perkin’s condition however was distributed to an excessive amount of personnel within the police force, in particular during the course of the CAP application. If the learned Judge finds that Operation Lapmoor was unnecessary and / or disproportionate in the circumstances, then it follows that the information relating to Ms Perkins’ health and disability that was distributed by way of emails and reports for the purposes of the investigation was equally unnecessary and disproportionate. What is the extent of the private information obtained and was it misused? 47. Ms Perkins accepts that the information she posted on her facebook page and the information about her competing at a horse-riding event on 22/2/14 do not constitute private information.

MISUSE OF PRIVATE INFORMATION In relation to the questions the judge needs to answer regarding misuse of private information, Ms Hemingway submits that they are: 1) Whether there was a reasonable expectation of privacy? 2) If yes, how should the balance be struck between rights of Miss Perkins and duties of the police? In answering this second question, the judge was invited to take into account the following factors: a) Attributes of Miss Perkins b) Nature of activity c) Place it was happening d) Nature and purpose of intrusion e) Absence of consent f) Effect on Miss Perkins g) Circumstances in which, and purpose for which. info came into hands of the police h) Public interest. The judge was invited to apply the latter test to all categories in the schedule, as agreed between both counsel. In this case, Miss Perkins was horse-riding in her own time, a leisure and sporting activity which can gives rise to a reasonable expectation of privacy, as in the cited authority of Hannover v Germany, wherein Princess Caroline of Monaco brought a claim against the German media that had published photographs of her engaging in leisure activities. On the occasions that Miss Perkins did ride, it was mainly on private farm land near her home. It is accepted that there is no reasonable expectation of activities relating to public events that are likely to be reported in different forms of media. That concluded Ms Hemingway’s submissions

Miss Checa-Dover, on behalf of the police, summarises her client’s position to the effect that the investigation into Miss Perkins was lawful, compliant with the Data Protection Act, 1998 and her reasonable expectation of a right to privacy. The chief constable, through her, also contends that the Claimant’s data was processed lawfully and that the misconduct investigation, into alleged breaches of the Code of Ethics, was lawful, necessary and proportionate in order to maintain public confidence in an efficient and effective police service.

The reader is reminded again that the burden of proof in this claim is for the police to prove the lawfulness and proportionately of their actions.

Thursday 28th November, 2019

First witness was retired sergeant, James Carter, who now works as a civilian in the force’s Central Authorities Bureau. His evidence, under cross-examination by Sarah Hemingway, counsel for Miss Perkins, covered complex and, sometimes, conflicting and confusing areas of law and policy, relating to investigatory powers, directed surveillance and covert policing activity. The court heard that Mr Carter had worked in the Bureau for around 10 years, reporting to an officer called Lynton Patz who manages the bureau, and that he was able to assist with the classification of the seriousness of surveillance between Level 1 (lesser crime) and Level 2 (serious crime and Professional Standards investigations) and the difference between ‘directed surveillance’ and ‘surveillance’, in a policing context, and how both were balanced against data protection and Article 8 Convention rights that lie at the heart of this case. Mr Carter told the court that he had actually filled in the Covert Activity Policy application form relating to the surveillance on Kerry Perkins, the Claimant in this case. The applicant was Inspector John Rogerson from whom the court heard quite extraordinary evidence on Tuesday and Wednesday. He had given Mr Carter a verbal briefing and there were no records of notes or documents that supported the application, the court heard. Mr Patz had reviewed the application form and approved it. Ms Hemingway asked Mr Carter why no written application was made by Rogerson, he stated he was ‘not sure that a written memo, in form of email, wasn’t received from him’. No such document has been disclosed to the Defendant’s legal team. The court also heard that this CAP authorisation is one of only two Mr Carter has dealt with against a police officer in his ten years in the Bureau, whom, to his knowledge of the activities of all the other members of his team, dealt with them once every four or five years. He agreed with Ms Hemingway that such action was ‘exceptional’. It also emerged in evidence that he couldn’t recall a discussion with Rogerson regarding enquiries being made directly of PC Perkins (as she was then) regarding her horse riding. He did recall, however, being told she was ‘unco-operative’ over her medical condition. His own policy, as an experienced police officer and Bureau official, he told Ms Hemingway, was to look for less intrusive means of obtaining data, evidence before authorising a CAP.

Next in the witness box was retired superintendent Karen Gayles, who features prominently elsewhere on this website (read more here). In the light of her evidence to the court that article now assumes higher relevance. The court heard that Mrs Gayles was the officer who authorised Automatic Number Plate Recognition (ANPR) surveillance on PC Perkins and the harvesting and processing of data from that computerised system for at least 12 months across three counties. Under cross-examination it emerged that Mrs Gayles had relied only on a verbal briefing from an officer whom had plainly, on his own evidence heard in this court earlier in the week, become obsessed by criminalising Miss Perkins; used the wrong form for the authorisation; did not accept that such use made the authorisation unlawful; ticked the box for ‘major criminal investigation’ despite maintaining repeatedly it was ‘a misconduct matter’; at first relied on the premise that the justification for the surveillance was volume or urgent crime, later resiled to alleged breach of Code of Ethics (misconduct by another name); this was the only authorisation she ever made for ‘misconduct’ in her career; authorised at least 12 months of surveillance and would have been prepared to authorise it for 5 or 6 years as a means of ‘being fair to Kerry’; did not know that the vehicles to be surveilled were insured for multiple drivers and, therefore, the objective of the surveillance could not possibly be achieved; did not ask if less intrusive means of surveillance were available; claimed reasonable adjustments had been made for PC Perkins regarding her disability; did not retain her day book as she was required to do under force policy; could not recall if there was an entry in that day book relating to the authorisation; made no notes or minutes of the briefing with Rogerson; did not accept that there were no safeguarding processes in place to check the validity of her actions (or inactions); asserted that her motivation for a ‘robust’ approach to the authorisation, and the proving of misconduct, or otherwise, was ‘austerity’; wrongly claimed that PC Perkins was earning £25,000 per annum. Throughout the cross-examination, Mrs Gayles forcefully repeated that the authorisation was ‘necessary and proportionate’, was lawful and complied with policy.

The last witness to give evidence in this claim was the second surveillance officer known to have attended at Miss Perkins’ home on 10th June, 2014. He cannot be named, for legal reasons, and is referred to here as Detective Y. Most of his evidence was heard in camera; the only question raised in public session was whether he knew of a third vehicle that may have attended at her home on that morning. He said he ‘couldn’t remember’.

Testimony from the three West Yorkshire Police witnesses today completed the evidence in this trial and the case for the defence.

It does not go to the determination of the issues in this trial, but of far wider public concern and a troubling feature, almost throughout this hearing, has been what appears, at close quarters, to be the general conduct and selective memory of serving and retired officers giving witness box evidence, on oath. This particularly applies to the two surveillance officers: Why would a police force continue to deploy specialist, expensively trained officers where core competencies have to be obeying lawful orders; good, clear recollection of events; and accurate recording and/or note taking.

It was revealed in court that Detective Y had received a ‘de-brief’ from Detective X about the latter’s evidence (given on Wednesday afternoon) before the former appeared in the witness box (on Thursday afternoon). At the time of the briefing, Detective Y said he did not know he was to give live evidence, although he had filed a witness statement and was on the original list of those officers expected to appear at the hearing.

Wednesday 27th November, 2019

Proceedings resumed at 10.45am with retired detective inspector John Rogerson continuing his evidence after a dramatic afternoon in the witness box yesterday afternoon.

He was questioned by counsel for the Claimant, Sarah Hemingway, on a number of matters relating to his characterisation of the alleged misconduct Kerry Perkins as ‘a major criminal investigation’. He confirmed that he had told the authorising officer, Superintendent Karen Gayles, of his view on the scale and type of the operation, but such an assertion did not appear anywhere in his witness statement. When it was put to him, he denied that he had ‘shoehorned’ this into his evidence yesterday to fit the contemporaneous documentation. He had no answer to the point that a major criminal investigation, according to national policing policy, would require a nationally recognised and PIP Level 3 accredited Senior Investigating Officer (read more here). The judge, HHJ Neil Davey QC, crystallised this point: WYP’s Professional Standards Department had assessed the matter as misconduct, Mr Rogerson thought they (PSD) had got that wrong and it was a major criminal investigation.

He also confirmed to the court that he had no experience, or knowledge, of the ACPO Code of Practice in relation to accessing the Police National Computer for information extracted from the DVLA or the Motor Insurance Database. Or, indeed, had he ever seen West Yorkshire Police’s own policy document relating to this issue. His strong view was that all his actions relating to the covert surveillance of a junior colleague on his team, including the harvesting, storage and processing of ANPR data across three counties and for over a year, were necessary, proportionate and fell within the ambit of a proper policing purpose. Even though it is an agreed fact in that case that the subject vehicles were insured for multiple drivers.

John Rogerson signed off his evidence by asserting, with some force, when questioned by counsel, that an intrusive and far-reaching investigation into their mother, a serving police officer, over whether, or not, she was driving a horsebox or walking her dog, that he classified as a major criminal investigation, would have impact on two young children or breach their Article 8 Human Rights: “I didn’t see that then, and I don’t see it now. Why would an investigation into a parent have an impact on children?”

Evidence was then heard from Detective Chief Inspector Stuart Bainbridge. It was drawn out in cross-examination by Ms Hemingway that a written assurance given by Inspector Grant Stead to Kerry Perkins turned out to be untrue. It concerned a request regarding his independence and impartiality in connection with an investigation into complaints raised by Miss Perkins. Stead assured her that he had no previous involvement in any misconduct matters pertaining to her. He was, it was heard, the PSD officer who managed the covert surveillance on her and communicated with Mr Bainbridge, his immediate subordinate, by email, on this particular point.

The court also heard that Mr Stead had told the surveillance team headed by Mr Bainbridge that there was to be no mobile surveillance. That instruction, the court heard, was ignored and the two operatives under Bainbridge’s command carried out mobile surveillance, for which one of the two operatives, who will be referred to in these reports as Detective Y, was even not trained. The objective was to find the location of the stables where Miss Perkins kept her horse. When asked by Ms Hemingway if the officers investigating her, Sergeant Astill (as he was then) and Inspector Rogerson (from both of whom the court has already heard) could simply have asked her where the stables were, rather than an expensive, resource intensive policing operation, he said: ‘Possibly, yes’. The court heard that the information the police required regarding the stables was obtained by a Google search undertaken shortly after the initial surveillance activity, which was, the court heard, carried out at the wrong time of day and when Miss Perkins was on police duty.  Mr Bainbridge maintained that the surveillance operation against her was necessary and proportionate. He said that Inspector Rogerson, an experienced Professional Standards detective sergeant before he was promoted to neighbourhood inspector, had tried different ways to obtain the information and failed. He did not elaborate on that but it was heard that they did not include asking Miss Perkins, or an internet search. Mr Bainbridge told counsel that he didn’t ask his former PSD colleague where the riding stables information came from when the authority to carry out surveillance was cancelled by a superior officer. The court heard that Mr Bainbridge made no notes pertaining to this surveillance  in his pocket note book, as he is required to do under Police Regulations.

The next witness cannot be named for legal reasons. He is referred to here as Detective X. Part of his evidence was heard in camera. The report on his evidence will be necessarily brief to avoid the possibility of jigsaw identification. Detective X couldn’t explain to Ms Hemingway, when questioned, why mobile surveillance was carried out against specific written orders from Inspector Stead, or why he went at the opposite end of the day to that discussed between senior officers and recommended by Inspector Rogerson. He also couldn’t explain why his surveillance partner was deployed although not trained for what he was asked to do and no notes of the operation were made in his pocket book. He told the court that he did not know that he had been deployed on private land, in a location identified by Inspector Rogerson, for which he did not have authority. He did agree with counsel when asked about the requirement to assess the necessity and proportionality of what he was doing but could not answer when asked about the experience and training of his fellow operative, DC West.

The last witness of the day was retired chief superintendent, Simon Whitehead. The court heard that he was the senior officer who had authorised the Covert Activity Policy (CAP). His career had included a spell in PSD as a chief inspector. When asked by Ms Hemingway if he took CAP authorisations seriously he said, ‘Yes’, but then said he had made no notes of the process in his day book, as required and he had received only a verbal briefing from Inspector Rogerson, whom, the court heard, did not produce a single document in support of his request for authority and, similarly, had no written record of the meeting. Mr Whitehead’s understanding of the central issue was that Miss Perkins couldn’t perform operational policing duties but was horseriding as a hobby. Alleged dishonesty was never raised as an issue with him by Rogerson. However, he described the horseriding as ‘significant allegations (sic)’ that could ‘adversely affect the reputation of West Yorkshire Police’. He told the court that he had considered an authority under the Regulation of Investigatory Powers Act (RIPA) but it was not a criminal investigation, a point clarified by the judge. He also said that he had performed the balancing act over Article 8 rights and proportionate action and the scales came down on the side of intrusive surveillance. This was shortly after he told the court that he would have expected Sergeant Astill to have asked PC Perkins where her stables were. He had not checked that was the case before signing off the CAP authority. Mr Whitehead could not assist with the question of whether CAP was a policy that applied across the wider police service and he wasn’t familiar with the statutory framework. In answer to Ms Whitehead, he told the court that he didn’t recognise the West Yorkshire Police Data Protection policy to which he had been directed in the bundle. He agreed that unlawful processing of data would reflect badly on West Yorkshire Police and harm their reputation.

Tuesday 26th November, 2019

Proceedings under way at 11.20am. The judge allocated a later start than usual to allow counsel from both parties to continue discussions, carried over from yesterday afternoon, aimed at crystallising the status of the data and information still under consideration in this trial. It is worth repeating that this is a ‘liability only’ trial.

On a point of housekeeping, permission was granted by the court for Matthew Stringer, a witness on behalf of the Claimant, Miss Perkins, to rely on his second witness statement, filed at the beginning of November, 2019. His first witness statement was dated 14th December, 2018.

A retired South Yorkshire Police constable, and former Police Federation representative, Mr Stringer is the first witness to give live testimony in this case. Much of his evidence had fallen away as the Regulation of Investigatory Powers Act (RIPA) is no longer in issue in this claim. With regard to the alleged helicopter surveillance, denied by the police, that had troubled Miss Perkins so much, he advanced the view that ‘there was no smoke without fire’. Reference was made by Mr Stringer to known misuse of police aircraft by his SYP colleagues and the judge clarified that he was alluding to the infamous case of flying over people sunbathing in their back garden. Counsel for the Defendant characterised that part of his evidence as reckless and made without access to the full facts. Mr Stringer, in response said his evidence was given with an honest perspective. He also told the court that he had never come across covert surveillance of a fellow officer in all his years as a Fed rep.

That completed the case for the Claimant. The court having adopted her witness statement as her evidence in chief and there being no cross-examination required by the police.

The Defendant opened its case with evidence from a serving West Yorkshire Police inspector, Mike Astill, who was the first witness for the Defendant. He was a sergeant working in the Castleford neighbourhood policing team at the time Kerry Perkins suffered her back injury in February, 2013. He confirmed that she had an unblemished police career. Under questioning from her counsel, it emerged that Mr Astill was her line manager, and one of the driving forces behind disciplinary measures that were instituted whilst she was still under the care of both her own doctor and the police force’s occupational health unit. He agreed with counsel that reasonable adjustments for Miss Perkins’ injury, such as a lumbar support chair and a riser desk were not made for over a year. Asked about an email he had sent to colleagues that opened with ‘Kerry is a problem child and top of my hit list’, he denied that was a signal of his intention to make life difficult for Miss Perkins and remove her from his team. When questioned about why he chose to deliver a formal disciplinary notice at 9.30pm to Miss Perkins’ home, where she lived alone with two young children, he couldn’t explain why he chose that hour to complete the task. Mr Astill also said that ‘it was not his finest hour’ when he wrote derogatory comments about Miss Perkins in an email sent to Chief Inspector McNeill. It also emerged in cross-examination that the core allegation that led to those disciplinary proceedings was the fact that she could ride a horse, but not commute to the police station near Castleford, from her home in South Elmsall, on a daily basis. A secondary allegation was that she had been seen walking her dog. Mr Astill could not explain why that process commenced when it ran counter to the findings of two doctors, one of whom was employed by the police.

The second police witness was retired detective inspector, John Rogerson. He was the neighbourhood inspector at Castleford at the time the dispute arose with Miss Perkins and, it soon became evident, the other driving force behind the proceedings being taken against her and the covert, but seriously intrusive, surveillance that formed part of those actions. Under careful and forensic questioning from Sarah Hemingway, it emerged that Mr Rogerson, absent of the medical facts and none too careful about how he went about it, became obsessive about proving that there was serious wrongdoing attached to the horse riding hobby of one of his junior officers, given that, although on duty, her injury meant she was unable to commit to a significant daily journey to a station remote from her home. He variously claimed that it could amount to gross misconduct, potentially leading to dismissal from the force, or the criminal offence of misconduct in public office that carries a maximum prison sentence of life imprisonment. Conversely, it emerged that a Professional Standards Department reviewing officer questioned whether, in fact the horseriding was an issue at all, but Mr Rogerson ploughed on regardless. When seeking formal authorisation from a senior officer for covert surveillance he ticked the box marked ‘Major Investigation’, normally reserved for murder, attempted murder, manslaughter, infanticide, terrorist activities, kidnapping. Asked by counsel if he maintained that position in the case of Miss Perkins, her back injury and horse riding, Mr Rogerson confirmed that he did. The surveillance that was authorised at his request is now known, from the evidence, to include checks on the school of Miss Perkins’ children; undercover officers stationed at the rear of her house; contact with neighbours and riding school colleagues; aerial photographs of her home; monitoring of her social media accounts and ANPR (automatic number plate recognition) across three counties without time limit. He maintained all this was necessary to ‘build up a picture of her lifestyle’ and was necessary and proportionate to aid the disciplinary proceedings. Mr Rogerson flatly rejected the question by Ms Hemingway that there were much easier ways to obtain the information he was seeking, almost all of via open source.

The court adjourned at 4.50pm with Mr Rogerson’s evidence part heard.

Monday 25th November, 2019

The trial opened today in Bradford Combined Court Centre to decide a civil claim brought by a retired police officer against her former employers, West Yorkshire Police. It is expected to take up seven court sitting days with judgment scheduled to be handed down on Tuesday 3rd December, 2019.

The Claimant, Kerry Perkins, who lives in the Pontefract area and served 16 years with her local force as a police constable, before retiring on medical grounds, claims that the Defendants seriously breached her data protection and privacy rights. The police are resisting the claim.

Miss Perkins is represented in court by Sarah Hemingway of counsel, instructed by John Hagan of DPP Law. WYP are represented by Olivia Checa-Dover of counsel, instructed by Prue Crossland of the force’s Legal Services Department.

The claim will be heard by HHJ Neil Davey QC, who has returned to judicial duty having retired in June, 2019 from full time service on the bench.

In the first instance, this is a trial of breach only. The Claimant seeks damages from the Defendant for personal injury, but matters of causation and quantum will be dealt with seperately, if the judge finds in favour of Miss Perkins on liability.

The claim arises out of an investigation conducted by the police into the private life of Miss Perkins after it came to light that she had resumed horse riding, despite the fact that she was on restricted duties at work as a result of a back injury.

As part of that investigation, West Yorkshire Police collected information about Miss Perkins from various sources, including DVLA and Motor Insurance Database, from the Police National Computer (PNC), social media and by directly contacting her friends and associates at various riding stables and clubs.

The police also authorised Automatic Number Plate Recognition (ANPR) analysis and a Covert Activity Policy (CAP), in order to assess whether she was falsely claiming that she was injured, or unfit for routine policing duties as an operational officer. It was considered by senior officers in the Professional Standards Department that proof of such alleged deceit may amount to discreditable conduct.

In the light of some of the information obtained by the police, misconduct proceedings were initiated and Miss Perkins was eventually issued with a written warning. A minor sanction that decays after 18 months, if there are no other misconduct findings during that period.

Miss Perkins has always maintained that horse riding was not inconsistent with her inability to return to regular duties. This belief was supported by both the Force Medical Advisor and her own doctor.

Miss Perkins disputes the purpose, proportionality and lawfulness, of the methods used by her colleagues to investigate her private life and, thereafter, retain and process her personal data. She initially believed that, as part of the internal investigation, she had been surveilled by police helicopter, and by undercover officers in cars that she had noticed, in suspicious circumstances, near the stables and in other locations close to her home.

The police vehemently deny the use of covert surveillance, admitting only a single episode, on 10th June 2014, and they have produced a number of officer statements to support this position. In light of that, and following the completion of the pre-trial disclosure process, Miss Perkins has withdrawn those elements of her claim, whilst maintaining that she did genuinely believe that such covert activities had taken place and for which she kept detailed event logs with a large number of entries on each.

Eight witnesses, including some very senior serving and retired officers, are due to give live evidence on behalf of the force. The total legal costs of both sides are expected to be in the order of £150,000.

In the course of a brief court day, the court heard submissions from counsel on three preliminary issues:

Permission to amend particulars by the Claimant’s, concerning sensitive personal information pertaining to Miss Perkins, openly accessible on police computer systems, was refused on the ground that the proposed amendment came too late for the police to properly address the issues raised.

Counsel for the police submits that there are concerns over the two witness statements of Matthew Stringer, a former Police Federation representative, who will give evidence on behalf of Miss Perkins: It is now agreed that the Regulation of Investigatory Powers Act does not apply to this claim and, as such, there are ‘unhelpful, irrelevant, inadmissible paragraphs’ in Mr Stringer’s evidence. HHJ Davey took the view that the statements should remain in the bundle and the matters raised by Miss Checa-Dover could be dealt with by way of cross-examination or in closing submissions.

During discussions prior to the commencement of the hearing, counsel for both parties were able to narrow the factual disputes in the claim. It is now agreed that Facebook data obtained from the social media account of Miss Perkins, during the internal investigation, did not constitute a privacy breach.

Counsel for the police told the court that, as such, Miss Perkins may no longer have to give live evidence in these proceedings.

Page last updated: Tuesday 3rd December, 2019 at 1900 hours

Photo Credits: Kerry Perkins

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Did ‘bad apple’ taint the Thatcham barrel?

In March 2008, an investigation began into two Huddersfield brothers. Concerns about their extravagant lifestyle, following an anonymous tip-off, appeared to be the trigger for the police probe.

At the subsequent trial in Bradford Crown Court in March, 2011, it emerged in evidence that Nadeem and Thazeem Khalid had exaggerated their earnings to obtain £968,000 from three financial institutions; Lombard, Birmingham Midshires and Kensington Finance.

They had used loans, fraudulently obtained, to buy a £75,000 Ferrari car, and two houses in Salendine Nook; a £650,000 detached house and another, valued at £160,000, that was subsequently used as a rental property.

After the trial, the detective constable based with the Kirklees CID response team, Mark Lunn, told a local newspaper:

“They were living a fast and loose lifestyle well beyond their means.

“Throughout our investigation they both showed an air of arrogance and were always of the opinion the case would never be proved. They were wrong.”

DC Lunn added: “They may believe they are untouchable and they may be enjoying a lavish lifestyle when the honest, hard working members of the public are struggling in times of austerity. But they can rest assured the police will catch up with them”.

At the time of their arrest, and conviction, the brothers were said to be running a company called Advanced Claims UK Ltd although their names have never appeared amongst the directors listed at Companies House. In both the evidence used for the fraud trial, and in the unused materials (for the legally minded, the MG6(c)), there were documents relating to the running of that company that aroused suspicion of bogus motor insurance claims.

Mark Lunn, who lives in the Golcar area of Huddersfield, joined West Yorkshire Police as a special constable in 1988. He served in that role for 6 years. He became a warranted officer in 1994 and remained, in relative obscurity, at the rank of police constable until around 2007 when he passed his basic exams and became a detective constable with the CID Response team in Huddersfield. He was a ‘rookie’ when he was given the task of investigating the Khalid brothers. It is said by the police that he was the ‘officer in the case’ for that investigation.

Following the conviction of the Khalid brothers, Lunn was ‘recommended’ to join the specialist Kirklees Proceeds of Crime Act (POCA) Unit at their base in Batley Police Station. The sergeant leading the team, Mark Taylor (now an inspector in Bradford CID), says ‘it was a close knit unit’. Unusually for a detective constable, Lunn was allocated an office of his own. He was also tasked with leading an investigation, codenamed Operation Thatcham, to look further into the activities of not only the Khalid brothers but, more particularly, one of their associates, Sahir Mohammed.

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Batley Police Station

But Lunn was harbouring a dark secret of his own, and the fine words he gave to the Huddersfield Examiner would come back to haunt both him and West Yorkshire Police.

Revelling in his new found ‘celebrity’, he was, soon afterwards, planning a very large loan (or investment) of his own whose provenance was questionable. The leverage for that payment was the success of the Khalid investigation and his position as lead investigator on Operation Thatcham, a joint operation that included the private, not-for-profit Insurance Fraud Bureau (read more here) and the Ministry of Justice as partners.

At around the same time, the IFB had been involved in a controversial prosecution at Southwark Crown Court of doctors and solicitors. It concluded in December, 2011, after the Crown Prosecution Service (CPS) dropped all charges, with the judge, HHJ David Higgins, describing the conduct of the case as “scandalous”.

That police investigation, codenamed Operation Triassic, had been funded and driven by the insurance industry and Ian Lewis, at the time the fraud partner at Manchester law firm Lewis Hymanson Small, representing BCR Legal Group, a London-based insurance intermediary, said: “Despite repeated requests to be provided with details of the complaints, the CPS and the police failed to do so, raising speculation that this was an investigation led by the insurance industry with a suspicion of an agenda to continue the civil cost wars in the criminal courts”.

IFB, for their part, maintain that they “….provided good evidence to the City of London Police to investigate the matter further and bring charges against the professionals concerned”. An article published by Legal Futures, covering the case, can be read here.

Questions concerning IFB’s role and whether they contributed funding to Operation Thatcham have been put to both them and West Yorkshire Police.

Police documents show that Mark Lunn added to his publicly available LinkedIn profile, sometime in 2011 he says, the fact that he was a director of private investigation business using a bogus company, ‘Insurance Fraud Consultants Ltd’, as its trading style. It was not registered at Companies House at that time. He was, it seems, looking to ride the tidal wave of money being thrown at tackling insurance fraud by the big players in that industry. ‘Crash for cash’ motor insurance frauds were one of the biggest concerns for underwriters and brokers.

He subsequently approached two senior managers of a large, well established insurance company based in Haywards Heath, Sussex. They were Glenn Marr (Fraud Director) and Clare Burrell (Claims Director) who both worked for 1st Central Insurance. They are part of the much larger, Guernsey based, First Central Insurance and Technology Group.

Lunn says he had been introduced to 1st Central by an, as yet, unidentified contact made through the ‘crash for cash’ investigations. He made three visits to the insurer’s head office, whilst not on West Yorkshire Police business, during the time he spent running Operation Thatcham.

A business plan for the bogus company was produced by Lunn, on police computers, although he told Detective Chief Inspector Paul Jeffrey, in interview, that he had worked on it ‘only in lunch breaks’. He also admitted sending out emails connected to ‘Insurance Fraud Consultants Ltd’ using his police email account.

The plan was for 1st Central to pay him £183,000, based on that spreadsheet. Apparently, whilst Lunn was leading one of the highest profile fraud investigations in West Yorkshire Police history. A series of questions has been put to the press office of First Central Group concerning the provenance of this arrangement, given they must have known that Mark Lunn was a serving police officer and it directly conflicted with his leader role on Operation Thatcham.

Lunn had already sourced an office and agreed a rental with a well-known local businessman, Ian Pogson, who passed away suddenly in July, 2014. The premises were situated at Brougham Road, Marsden a short drive from the police officer’s home. Police documents reveal that 1st Central rejected that location as they wanted Lunn’s business premises to be situated in Leeds, the recognised regional economic centre.

Mr Pogson is named, by the police, as someone who could give advice on the drawing up of Lunn’s business plan. The link to Mr Pogson was via a former Metropolitan Police detective, Darren Jones.

Lunn says he met Mr Jones through enquiries as part of the Thatcham investigation. The latter is the principal shareholder in Fraud Consultants UK Ltd (read more here). Mr Jones was asked to verify if Mark Lunn’s account of his intermediary role is true. He states that it isn’t: Mr Jones was not a serving officer at the time and he says that Lunn approached him for advice, out of the blue, as someone who had started his own fraud investigation business. He knew Ian Pogson, as he was a client for whom he was doing professional work. Beyond that, he says he has little or no recollection of Lunn. Operation Thatcham was never discussed between them.

 

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Andel Ltd was the business controlled by the late Ian Pogson

According to DCI Jeffrey, based on the account Lunn gave to him, a Leeds solicitor, John James, was also involved in the plans involving the bogus company, ‘Insurance Fraud Consultants Ltd’. He is a personal injury specialist presently working for a firm called Legal Studio (read more here). He was described by Lunn ‘as a prospective co-director’.

At the time of the alleged association with Lunn he was working for one of the largest law firms in Leeds, Ford and Warren. His CV on the LinkedIn website describes his role there as ‘Specialising in Insurance Fraud litigation, investigating and defending fraudulent motor claims on behalf of insurer clients’. Both Mr Walker, and Weightmans Solicitors, who took over the business of Ford and Warren, have been invited to give an account of any interaction with this ‘company’, a serving police officer and what appears to be a very large sum of money.

This private enterprise, apparently involving variously, and not necessarily limited to, a serving West Yorkshire Police officer, a former Metropolitan Police officer, a solicitor, and one of Huddersfield’s most successful businessmen, was, plainly, a very serious undertaking. The fact it was being organised from Batley Police Station, using police resources (office space, computers, phones at the very least), a police email address, software licenced to the police, and relying almost entirely on a number of professional connections made whilst on one of West Yorkshire Police’s largest ever fraud operations, is concerning.

On Lunn’s own account, he had been working on the satellite project for up to a year.

A series of questions has been put to West Yorkshire Police press office in order to shed more light on how this could have possibly happened and why Detective Constable Mark Lunn was not dismissed from the force. There is also the latent question of whether any of his conduct met the criminal threshold, particularly the deception over the bogus company.

The police’s position, regarding the sanctions Lunn faced over a lengthy list of serious demeanours, is that he was placed on an Unsatisfactory Performance Plan (UPP). A three-stage process that is more aligned to Human Resources than Professional Standards. Routinely used to tackle issues such as lateness or poor attendance record.

The UPP proposition, advanced by West Yorkshire Police, intended to divert attention from the investigation that it is known did take place into Mark Lunn, is, quite simply, preposterous. Those making it, and those maintaining it, should, themselves, face disciplinary or regulatory investigation.

There are also the residual and more serious issues of (i) what happened to the money that the police say was paid to Lunn and (ii) was it legitimately obtained? Public confidence in the police will suffer a serious detriment if answers are not provided to these questions.

On 14th May, 2012 a Bradford firm of criminal defence solicitors, Opus Law, wrote to the Professional Standards Department of West Yorkshire Police and drew the force’s attention to at least some of Lunn’s nefarious activities. Opus, a ‘Legal 500 Leading Firm’, represented one of the persons arrested, two months earlier, as part of Operation Thatcham: Dr Abdul Rashid, a Bradford GP and medico-legal expert.

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It appears as though PSD was either slow to act, as the third of Mark Lunn’s three visits to 1st Insurance took place eight days later, on 22nd May, 2012, or, by then, they had him under covert surveillance. He had taken that day off as unplanned leave, telling his supervisor, Detective Sergeant Taylor that he had ‘child care difficulties’.  He later told DCI Jeffrey he couldn’t remember saying that and, according to DCI Jeffrey’s notes, Lunn ‘made great play of how bad his memory was these days’.

On Monday 4th June, 2012, Mark Lunn started a planned two week period of leave. At a County Court hearing that concluded recently in Bradford Combined Court Centre, DI Mark Taylor (as he is now) gave evidence about how he came to know of Lunn’s burgeoning private enterprise. It can be paraphrased in this way: ‘On or about the first day of Lunn’s leave, DC Andrew Barrett came to his office and blew the whistle on Lunn, whom had been heard in telephone conversations obviously not to do with his police work’.

In police documents it emerges that, on DI Taylor’s account, DC Barrett was not the only team member to have heard, or seen, Lunn conducting such activities. Others were aware that he had compiled a business plan and had travelled ‘down south’ to make a ‘pitch’ for investment in his business. There was a huge concern as to how this would impact on the integrity of Operation Thatcham’.

DI Taylor’s further evidence in court was that he telephoned DI Andrew Leonard on that day, which he said was ‘at the end of May or beginning of June’ to share the knowledge of DC Barrett’s whistle blowing. There is no contemporaneous document available to support this account by DI Taylor. No emails, entry in pocket note books (PNB’s), or day books, and nothing on the investigation policy log relating to this. A ‘big red flag’ to borrow a phrase the police’s barrister, Olivia Checa-Dover, is fond of using, was not raised anywhere, it seems. Just an internal phone call, of which there is no audit trail.

A remarkable feature of those proceedings was the extent to which DI Taylor’s recollection of events varied from question to question, put to him in his examination-in-chief and, later, his cross-examination.

Another feature was that a significant number of other documents that would have supported DI Taylor’s oral evidence had either gone missing, been inexplicably destroyed or not searched for.

A third feature was how little DI Taylor appeared to know about the day to day running of the Thatcham investigation. For example, on a policy log with a very large number of entries he could not point to a single entry he had made. Almost every single one was made by DC Lunn. He told the court he was involved in thirteen other investigations or prosecutions at the time.

A fourth feature, very obviously of course, was the massive private enterprise, with a dangerous conflict of interest, being organised by the officer leading the investigation, right under DI Taylor’s nose. For up to a year, Lunn must have regarded his supervisor, working in an adjacent office, with scarcely concealed contempt.

Without the letter from Opus Law, it is possible that Lunn would have got away with his plans and scammed both West Yorkshire Police and, possibly, 1st Central Insurance, who were being asked to invest very heavily in a bogus company whilst the principal was a serving police officer.

On 7thJune, 2012, DI Taylor was copied into an email sent by D/Sgt Lockwood. Attached to the email was the letter from Opus Law.

When asked in cross-examination, at the County Court trial, if he had ever seen the Opus letter, before being shown the email in the trial bundle, he answered firmly in the negative.

He didn’t repeat the regular mantra of ‘I don’t recall’ or ‘I can’t remember’. He said: ‘No’

When shown the Lockwood email, he conceded that he must have opened it and seen the letter. The judge, Ben Nolan QC, sitting in this case as a Recorder, characterised this type of evidence as being tendered by a ‘truthful, reliable and extremely professional officer’. The judgment also gratuitously praises DI Taylor’s ‘very good recollection of his role as supervisor of DC Lunn’.

There is, very evidently, a tension between the daily reports of the hearings posted from the press seats and those judicial findings (read here). Not to mention the dangerous enterprise Lunn was perpetrating right under DI Taylor’s nose.

It now transpires, after further investigation, that the Opus letter featured in a meeting with DCI Jeffrey that took place on the day following receipt of the Lockwood email. DI Taylor had actually taken the letter to the meeting for the purpose of bringing it to the attention of ‘the boss’. The letter was not an item on the agenda, this was a routine operational review meeting of POCA team activity, and it seems, from DCI Jeffrey’s own account that this occasion was the first he knew of the Lunn complaint. It was only raised by DI Taylor when the review turned to Operation Thatcham, not as a matter of very considerable importance at the outset. Yet DI Taylor’s best evidence to the court was that he had never seen the Opus letter before being shown it in the witness box.

In DCI Jeffrey’s detailed notes of that meeting there is no mention of the Taylor phone call to DI Leonard. Or, indeed, any contact between Leonard and Jeffrey. It appears that, on all the available evidence, it was the first DCI Jeffrey, the Head of Crime in Kirklees, had heard of the complaints made against Lunn by Opus Law. 25 days after their letter had been sent to West Yorkshire Police.

The apparent delay by the POCA team, and the seeming lack of urgency in managing the complaint up the command chain, over what were, on any independent view, serious allegations, is troubling. Particularly, in the light of knowledge held, by both PSD and those senior officers, over a ‘written warning’ sanction Lunn had received, previously, at the end of a misconduct investigation into misuse of police computers. Given what was alleged, and the fact that the latest complaint came from a leading firm of solicitors well acquainted with policing matters, with documentary evidence supporting it, gives rise to suspicion that other dynamics were in play.

Frequently, police officers are dismissed from the service for computer and data misuse. It is, quite rightly, viewed very seriously and, as such, a curiosity as to why Lunn escaped with such a relatively minor sanction over his previous breach. Nevertheless, in the light of that disciplinary finding, the decision to allocate Detective Constable Lunn an office of his own in Batley Police Station, away from the gaze of the rest of his colleagues, appears highly questionable and smacks of poor supervision and decision making.

There was also one other live PSD complaint running at the time, from a member of the public, over the failure of Lunn to return seized property. The outcome of that complaint is not known. In his written response to PSD, Lunn had declared that he was ‘Team Thatcham‘ and that status, apparently, gave him immunity from any criticism, either internally or from members of the public.

In the same County Court proceedings, featuring the unlawful arrest of Dr Rashid, the court heard at the pre-trial review that there had been three previous complaints made against Lunn, by members of the public, alleging unlawful arrest. None were upheld by PSD. Under force policy at that time, West Yorkshire Police should, however, have placed a ‘red flag’ against Lunn’s name for having three complaints of the same classification made against him, irrespective of whether they were upheld or not.

Dr Rashid’s unlawful arrest claim was also dismissed, after a ten day court hearing, but is presently subject to an appeal to the High Court (read more here). He was never charged with any offence, but kept on police bail until June, 2013.

DC Mark Lunn, the officer in charge of the Thatcham investigation was, on the documentary evidence provided by the police to the court, clearly a detective who was prepared to persistently lie; misuse police assets; misrepresent himself using a police email account to further a private enterprise; repeatedly deceive fellow police officers working in the same team; engage in conduct that placed a huge fraud investigation at risk; gratuitously embellish his CV (which he still does to this day); repeatedly breach Police Conduct Regulations and place self-interest well above public service. Added to all that ‘he made great play of how bad his memory was’.

Unsurprisingly, that is not the view Mark Lunn projects about himself.

Screen Shot 2019-09-22 at 15.32.42

Incredibly, this was the officer who planned and executed the arrest of Dr Rashid and wrote the operational order that included a massive, pre-dawn police raid at a residential property in an upmarket suburb of Bradford, the home of a well known professional man deeply embedded in the local community, and in which children as young as seven years old were asleep.

The findings of the judge, at the conclusion of the Rashid trial, seek to strongly downplay the impact of Lunn on the lawfulness of the doctor’s arrest and his role in it. Not only in the face of what was known in court about an officer whose very presence, let alone his position as its leader, appears to taint the entire investigation, or at the very least, up to the point he was removed from it, but the fact that almost all the documents, upon which Lunn might reasonably have noted the reasons he relied upon for the arrest, appear to have been ‘sanitised’. This formed part of the closing submissions of Dr Rashid’s barrister at the end of the trial. A point seemingly not addressed in the judgment.

The officer in charge of disclosure, on behalf of the police legal team, was DI Taylor. Warmly praised by the judge as ‘extremely professional’. From the press seats, at least, across three hearings, beginning in December, 2018 and ending in September, 2019 the drip-feed disclosure process had the appearance of an exercise whose principal aim was not to reveal anything that would undermine the principal plank of the police case.

The police’s various and changing explanations for the absence of key documents, including some of those provided by DI Taylor on oath, pose some difficulty when reconciling what is known as Authorised Professional Practice (formerly issued by the Association of Chief Police Officers, more latterly by the College of Policing), and the internal management of police information (MoPI) policies of a well-run police force. Not to mention their lawful obligations, Civil Procedure Rules (CPR) and duty of care.

One reasonable hypothesis, given what is now known about his general character and integrity, is that DC Lunn had exaggerated the reasons for the arrest in the contemporaneous documents pertaining to the arrest, for the purpose of enhancing his ‘pitch’ for investment in his private business by 1st Century – and giving the motor claims industry a ‘prized scalp’, as Dr Rashid was described in pre-trial court proceedings.

Significant support for this line of reasoning is that within hours of Dr Rashid’s arrest, Lunn had written to the General Medical Council to tell them that the doctor had been arrested over ‘serious fraud, money laundering and was part of an organised crime gang’. The words ‘on suspicion of’ or ‘alleged’ were notably absent. Lunn had also told the GMC that Dr Rashid was using drugs, but did not specify their nature, or application.

Lunn went on to say that patient records were found scattered in his home and the boot of his car. That was a baseless allegation, unsupported by evidence, photographic or otherwise. The ‘money laundering’ was an invention, as was the allegation that there was a misuse of drugs. None of these matters were ever put to Dr Rashid in interview.

Apart from this grotesque, and arguably libellous, smearing of Dr Rashid, it was a serious breach of West Yorkshire Police’s policy for disclosure to regulated professions. A task, for very obvious reasons, almost always undertaken by a specialist, qualified officer in the Force Disclosure Unit.

The General Medical Council’s Fitness to Practice Panel rejected West Yorkshire Police’s submissions and cleared Dr Rashid of any wrongdoing.

On 18th June, 2012, on the first day back on duty after his holiday leave, Lunn was summoned to Divisional HQ in Huddersfield for a meeting with DCI Jeffrey and DI Leonard, who was Mark Taylor’s line manager at that time.

Screen Shot 2019-09-23 at 07.44.49
DCI Paul Jeffrey pictured after the conclusion of the Opertion Thatcham trials

Perversely, given what was alleged, and Lunn’s past history of police computer misuse, this was arranged as an informal meeting. The public might reasonably have expected that, given the suspicion of at least one criminal offence, Lunn would have been arrested and interviewed under caution.

A countervailing argument might be that admissions could be coaxed from Lunn by informal questioning, rather than when represented by his lawyer and a Police Federation representative at a formal interview under caution, where he might be advised to give a ‘no comment’ interview and provide a statement prepared by the Fed’s own lawyers at its conclusion.

Dr Rashid, for one, might well point out that he was never given such opportunity. Instead, Lunn and sixteen other police officers turned up at his home at 6.15am banging on the door.

It is clear from Paul Jeffrey’s detailed account of the meeting that an internal investigation had been launched against Lunn on 8th June, and a significant amount of information and material seized prior to the interview on the 18th. It is now apparent that the investigation was codenamed Operation Wademere.

At the outset of that meeting with two of his superiors, Lunn was dismissive of the complaint against him and maintained that the Opus Law letter was ‘a bit of a joke’. The bogus company was ‘only an idea’ he said. He was unaware that an investigation into the complaint by PSD, or, more likely, the Anti-Corruption Unit (ACU) that falls under the PSD umbrella, had started ten days ago, at DCI Jeffrey’s instigation.

Lunn’s approach to the interview was described by fellow police officers as ‘closed’ and ‘evasive’. He was prepared to lie to two senior officers in an attempt to bluff his way out of the Opus complaint. He only made admissions, they said, when he belatedly realised that his superiors already had the answers to the questions they were putting to him.

Eventually, and reluctantly, it was admitted by Lunn that he had misused police computers again; he was running the private investigation business from his home, rather than the office he had agreed to pay £50 per month to rent; he was using contacts gained specifically through the Operation Thatcham investigation to set up his business; he had breached force policy in not disclosing his business interests; most crucially, there was a clear conflict of interest with his duties as the Officer in the Case and the acknowledged lead investigator in Operation Thatcham.

To the extent he had, potentially, placed the entire investigation in jeopardy. Not least, it seems, by procuring the services of a chartered physiotherapist, Lee Robinson, as a director of the bogus company. Robinson was already a retained expert witness on Operation Thatcham.

That conflict, the police admit, would have led to the collapse of the Thatcham trials if the information was disclosed to the Crown Prosecution Service. The decision was made by a group of officers to deliberately conceal that crucial information from the CPS and the legal teams of those on trial.

Lunn denied any other police officers were involved in the plans.

He was removed from Operation Thatcham on the same day, but neither suspended nor placed on restricted duties (normally a non-public facing role and not adjacent to any evidence chains). Instead, Lunn was posted to the Huddersfield South neighbourhood team. Policing the area both where he lived and planned to set up his private investigation office, with the locals unaware that, in their midst, was a ‘bad apple’ police officer. One with a history of complaints of unlawful arrests (at the time, four), one who had twice misused police computers, and one who had repeatedly lied to, and deliberately deceived, other police officers. With a bad memory, to boot.

DCI Jeffrey also noted after the meeting with Lunn on 18th June, 2012 that there was a clear risk of ‘reputational damage’ to West Yorkshire Police if details of Lunn’s activities emerged into the public domain. The risk to the public of rural Huddersfield appeared not to have even been considered, let alone assessed, by DCI Jeffrey or the Professional Standards officers. That, despite the conclusion being drawn by Paul Jeffrey: ‘There are misconduct issues apparent in the information gathering exercise conducted today and I have no doubt that there is significantly more information [about Lunn] that will come out over time’.

Some of that information may have concerned a registration that was made at Companies House, in the name of ‘Insurance Fraud Consultants Ltd.’, very shortly after Mark Lunn was removed from Operation Thatcham. It is unclear whether Lunn has any connection with any of the officers named as having control of the company. West Yorkshire Police were asked to clarify. They declined to do so.

Following the report of the Jeffrey/Leonard/Lunn meeting, in correspondence circulated to seven officers, up to the rank of superintendent, and who were, in one form or another, stakeholders in the investigation into Lunn’s activities, it was clear that there were serious concerns about what had been extracted from the police systems, by Lunn, to further his own commercial enterprise. Sgt Jonathan Dunkerley (as he was then) said: ‘It worrys (sic) me what he may have ‘taken’ with him from WYP systems that is clearly for personal gain. It’s obvious the monies and stakes are high’.

It also appears that Lunn was involved in another covert ACU investigation, codenamed Operation Waffleedge. ACU investigations are normally given operational codenames, Professional Standards investigations are given unique reference numbers (URN’s). For example, the Opus complaint had the URN ‘CO/797/11’.

The covert investigation was confirmed in an email between the Intelligence Unit in PSD and Stephen Bywater, following additional concerns raised with PSD on 8th June, 2012 by D/Sgt Lockwood, regarding Lunn. It was obvious that DS Lockwood was not in the ACU loop. The Waffleedge investigation was already under way:

‘We have received this request from Andy Lockwood about Mark Lunn. We are working on Mark LUNN for Op Waffleedge. What do you want to happen. Does someone contact DS Lockwood and let him know of our concerns? Or does the Intelligence Unit just do the work as requested?’

The police, in defending the unlawful arrest claim made by Dr Rashid, have given a variety of explanations for the Waffleedge investigation at pre-trial hearings, at the final hearing and in documents disclosed to the court. Including the proposition, submitted in court, that ‘Waffleedge was not a covert operation’. Taken together, they arouse the reasonable suspicion that the true findings of that investigation are being concealed, to the significant detriment of both Dr Rashid, the integrity of the Operation Thatcham investigation and, most crucially, public confidence in the police force.

There is also a freedom of information request in which West Yorkshire Police have refused to provide any information at all. They will not even confirm or deny Operation Waffleedge exists (read more here).

An appeal against the refusal by the police to disclose uncontroversial details about the investigation is, presently, being considered by the Information Commissioner. It is likely to be, ultimately, determined before an information rights tribunal. That is the only conceivable chance of prising at least part of the truth about Waffleedge from West Yorkshire Police.

Mark Lunn was, remarkably, not called to give evidence at the hearing into the unlawful arrest claimed by Dr Rashid. One of the reasons heard in court was an incredible submission by Miss Checa-Dover, at the pre-trial hearing before HHJ Neil Davey QC, that ‘the police couldn’t locate him’.

Amongst Lunn’s Facebook friends are Independent Office of Police Conduct (IOPC) investigator, Mohammed Ejaz, and the present Chair of West Yorkshire Police Federation, Brian Booth. Which, apart from laying to waste the proposition that Lunn couldn’t be found, presents an interesting challenge to those organisations, and damages public confidence in both by exhibiting a close association with a ‘bad apple’ police officer. Questions have been put to them both, individually, and to their respective press offices. No response was received from either.

Quite apart from which, it took less than 20 minutes, using open source material, for the author of this article to locate Mark Lunn. His home address, the names of the two businesses he now runs (jobbing builder and free range eggs vendor), his mobile telephone number, his Facebook account, and his LinkedIn account.

The trail of destruction he left behind as a police officer has lasted rather longer than 20 minutes – and it may not have ended yet. It appears from the various police correspondence, and reports, forming the rump of this article, that senior officers may have taken the decision to hide Lunn away, in what they believed was a noble cause and until the Thatcham investigation was completed, and not disclose his misdemeanours to those charged with offences arising from it. That may have influenced the defendant’s decision whether to plead guilty, or not, at court.

There has to be considerable doubt as to whether the trials would have proceeded if the fruits of the ACU and PSD investigations into Mark Lunn had been properly served on the CPS and the defendant’s legal team, as part of the police’s strict duty under the Criminal Procedure and Investigations Act, 1996.

Dr Rashid’s barrister, Ian Pennock of Park Lane Plowden Chambers in Leeds, raised this issue in court during his final submissions. He said that if the Lunn disclosures were not made, and it is more likely than not they weren’t, this could amount to a conspiracy to pervert the course of justice and required further investigation.

The judge observed that it didn’t matter as the defendants had pleaded guilty and the time for any appeal against conviction had lapsed. He did not address the core point of alleged police wrongdoing, or explore with the police legal team whether the criminal defence teams (or the CPS) of those convicted were, in fact, notified of Mark Lunn’s role in the investigation and his taint upon it. The CPS has been approached for comment. Gerry Wareham, Chief Crown Prosecutor for Yorkshire and Humber, in the manner of Ponsious Pilate, referred the matter back to West Yorkshire Police saying he had no power to investigate how or why the police had deliberately concealed information from the CPS.

A complaint is being made to the Independent Office for Police Conduct, by Dr Rashid’s legal team, with a request that another police force is appointed to investigate those allegations of perverting the course of justice.

That, regrettably, is founded more on hope than reality.

Recent history shows that the disgraced police watchdog and their local ‘masters’, West Yorkshire Police, will not want to lift the lid on this stinking Thatcham barrel. Both have steadfastly resisted calls to instigate a proportionate and independent investigation into the alleged serious failings of senior police officers over the industrial scale child sexual abuse, drug dealing, human trafficking in Huddersfield by Asian gangs – described recently by one outspoken media commentator as ‘Grooming Gang Central’.

A common link is that the Divisional Commander of Kirklees from 2009 to 2012 was Chief Superintendent John Robins, now, no less, the chief constable of that same West Yorkshire Police (read WYP biography here).

The child sex scandal and the Operation Thatcham debacle both happened on Robins’ Kirklees watch. As were the seeds of the outrageous lawlessless sown that has now seen  ‘Horrible’ Huddersfield grow into the worst place to live in the UK (read more here).

 

Page last updated at 0900hrs on Wednesday 30th June, 2020

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Photo credit: Huddersfield Examiner

© Neil Wilby 2015-2019. 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.

 

So I arrested him for something, sergeant.

It is said that renowned explorer Ranulph Fiennes has one stipulation about whom accompanies him on his far flung expeditions.  He is quoted thus: “I would be happy to take anyone on my expeditions, with one exception ….. people from Yorkshire”!  The characteristic Fiennes is, apparently, unable to tolerate is the Yorkshireman’s dourness and refusal to accept they are wrong.

This particular sterotypical characteristic of residents of God’s Own County might well be said of Stephen Bradbury who has recently successfully concluded a series of civil claims against West Yorkshire Police

Having acted as police complaints advocate for Mr Bradbury, since 2012, it must be said that in all my dealings with him he is found to be charming and affable. Also, no-one I know spends more of his own time helping others. A selfless, generous individual, on any independent view. That said, his case history undoubtedly reveals other classic Yorkshire traits; plain speaking, stubbornness and, unfortunately, for West Yorkshire Police an ability to stick to his guns in the face of hostile enemy fire.

Back in 2003, Mr Bradbury had raised concerns with his local council as regards quality and frequency of services to the tax-paying public by Kirklees. Looking back, how prescient those complaints were, as his local council staggers perenially from crisis to crisis. Not content with the council’s response, he attempted to raise issues in public meetings with both paid and elected officials. Unfortunately, Mr Bradbury’s persistence, and refusal to accept nonsensical answers from public officials, and detriment to his businesses, led, ultimately, to him being banned from all Kirklees Council buildings. Including libraries, wedding venues and sports centres.

In response, Mr Bradbury exercised his rights under the Data Protection Act and filed a data subject access request with the Council. In doing so, he discovered email correspondence between senior council officials, including Senior Legal Officer, Dermot Pearson, and another council lawyer who has since passed away, setting out that should Mr Bradbury’s “extreme behaviour” continue, they would take up the offer of Chief Superintendent John Robins, Kirklees Divisional Commander, whom had suggested that Mr Bradbury could be arrested for Breach of the Peace and “locked in a cell for a couple of hours while he cools down”.

Sure enough, a short time after that email exchange, Mr Bradbury, was indeed arrested and locked up for a few hours. He was, of course, released without charge. Robins was recently promoted, for a third time since that incident, and now heads up the force as Temporary Chief Constable, a matter that should concern every law abiding citizen in the county, based on this account. 

It is fair to say that Mr Bradbury, a man of exemplary character, did not ‘cool down’. He was, in fact, incensed by what appeared to be a pre-planned, but unlawful, conspiracy between the police and the council, and was not prepared to take this lying down.

Mr Bradbury decided to make a video film compilation that would chart his experiences with both the council and the police and, as such, appeared outside both council and police buildings, with his camera, taking photographs and filming with purpose, and intent, of exposing the police as (he sees it) “thugs”. This, ultimately, resulted in a YouTube channel being created. It is titled ‘West Yorkshire Police Action‘ and can be viewed here.

In its first four weeks after launch, unheralded, WYPA received over 500,000 views. In the twilight of a successful and varied business career, Mr Bradbury had fallen backwards into successful film production outlet. Over 80% of those making comments were supportive of Mr Bradbury, or critical of the appalling conduct of the officers . This video clip has received over one million views alone. The damage to public confidence in the police service is incalculable:

PC Cook was working for WYP at the time of this incident. He transferred to South Yorkshire Police a relatively short time afterwards.

As retired chief constable Andy Trotter, Communications lead for the Association of Chief Police Officers (now National Police Chiefs Council), advised all other chief constables in August 2010 “there are no powers prohibiting the taking of photographs, film or digital images in a public place.

Unfortunately, that very simple and direct statement didn’t get through to West Yorkshire Police, whose officers took a significant dislike to Mr Bradbury and his perfectly legitimate, commercially successful, if unconventional, film-making activities. Neil Wilby lodged a complaint, in 2013, with the Police and Crime Commissioner against two chief constables, Norman Bettison and Mark Gilmore, concerning their failure to circularise officers about the NPCC’s directive. It was proved that they hadn’t done as required by ACPO, but the PCC, Mark Burns-Williamson, decided not to uphold the complaint and took no action.

To compound matters, Mr Bradbury is aware of his right not to have to answer any police questions, or provide his name and address; a well established principle illustrated by the case of Rice and Connolly in which the then Lord Chief Justice, Hubert Parker, ruled in the following terms: That police had no power to insist upon answers to their questions, or to detain Mr Rice while they checked up on him: 

“It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of  arrest”.

And so, over a four year period, between July 2012 through to June 2016, Mr Bradbury was involved in numerous incidents with WYP officers where he was, variously, unlawfully detained, arrested, assaulted, and on one occasion, prosecuted.

It might usefully be pointed out, at this juncture, that Mr Bradbury, as at 2012, was 62 years old, small in stature (5′ 2″ tall) and light-framed.

It is for the police to establish that arrest, and use of force is lawful, and it soon transpired that, on every occasion WYP officers arrested Mr Bradbury (and different officers were involved in all seven incidents), not once could they prove that his detention, or arrest, was lawful. Either because detention and/or arrest lacked lawful authority, or because of the manner of arrest which, invariably, involved violence of varying degrees. 

On occasion, officers sought to arrest but failed, in breach of Section 28 of PACE, to advise Mr Bradbury that he was under arrest, or tell him the reason for the arrest. 

On other occasions, officers did seek to comply with Section 28 and advise Mr Bradbury that he was under arrest and sought to rely upon a variety of offences:  Breach of the Peace, Public Order and Anti Terrorism and yet, on the facts, no such offences had occurred .

One example is what happened on the afternoon of 31st January, 2013 when Mr Bradbury was outside the northern extremity of WYP headquarters, on the public highway, but close to the exit barrier from the car park.

At the time, Mr Bradbury was in possession of a handheld digital camera and a Go-Pro digital mini camcorder, resting on his chest.  A vehicle passed through the exit barrier, driven by DC Shaun Hurd.  As the vehicle of DC Hurd approached, Mr Bradbury took a series of photographs of the car.  DC Hurd drove through the exit barrier stopped his vehicle and then alighted, asking what Mr Bradbury was doing.  Mr Bradbury responded that he was minding his own business and doing nothing wrong. 

West Yorkshire Police’s Detective Constable Shaun Hurd assaulting Stephen Bradbury and unlawfully arresting him. WARNING: Some may find violent content distressing.

As Mr Bradbury was stood recording the unfolding events, DC Hurd turned towards his vehicle, removed a digital camera and took a photograph at close proximity of Mr Bradbury.  As Mr Bradbury explained that he in turn would photograph the lollipop-sucking detective, DC Hurd moved towards him and attempted to snatch the camera from his grip.

Mr Bradbury was then grabbed by DC Hurd and told that he was under arrest for conduct likely to cause a breach of the peace.  DC Hurd forced Mr Bradbury up against an adjacent brick wall, with his arm held tightly up behind his back. 

Mr Bradbury challenged DC Hurd as to the reason for his arrest, specifically what basis there would be to suggest a breach of the peace. DC Hurd (perhaps unaware that the arrest was being recorded) suggested that it was because Mr Bradbury had attempted to get into his car, which was manifestly untrue.  Mr Bradbury, quite correctly, denied this to be the case.  DC Hurd then falsely suggested (on more than one occasion) that Mr Bradbury had put his camera inside of his car.

Another officer, Detective Inspector Damian Carr from the force’s Professional Standards Department, then arrived on the scene and, after a private conversation with DC Hurd, Mr Bradbury was de-arrested and permitted to go on his way.

DI Carr, of whom, it is fair to say, had a chequered history in his role as a PSD officer, made no attempt to hold DC Hurd to account, either on the day or, subsequently, throughout an elongated complaints process.

Was Mr Bradbury guilty of causing a Breach of the Peace?

Breach of the Peace is a common law concept which confers upon police officers the power to arrest, intervene or detain by force to prevent any action likely to result in a Breach of the Peace.

A Breach of the Peace will occur whenever harm is done, or is likely to be done to a person, or in his presence to his property, or, whenever a person is in fear of being harmed through an assault, affray, riot or other disturbance.

An arrest may be made where a Breach of the Peace is being committed, or has been committed and there is an immediate need to prevent a further breach, or where the person making the arrest has a reasonable belief that a breach will be committed in the immediate future.

The courts have held that there must be a sufficiently real and present threat of a Breach of the Peace to justify the extreme step of depriving the liberty f a person who was not at the time acting unlawfully.

While a constable may, exceptionally, have the power to arrest a person whose behaviour is lawful but provocative, this power ought to be exercised only in the clearest of circumstances and when he is satisfied on reasonable grounds that a Breach of the Peace is imminent.

There was clearly no basis to arrest Mr Bradbury, and his arrest and detention were unlawful. As the arrest was unlawful then it is clear that DC Hurd seriously assaulted Mr Bradbury. The errant detective faced no charge, or disciplinary proceedings, in the face of the clearest of evidence.

Sometimes the reasons given to arrest Mr Bradbury changed upon either reflection, or advice, from more senior WYP officers.

On 7th December, 2012, Mr Bradbury was again situated at the rear of West Yorkshire Police headquarters, on the public highway, a short distance from the car park.

Pursuing his film-making ambitions, Mr Bradbury was engaged in taking photographs of police officers and vehicles.

Unbeknown to Mr Bradbury, information as to his whereabouts, and activities, had been reported to the WYP Control Room and, in consequence, Detective Constable 4613 Edwards decided to approach Mr Bradbury.

DC Edwards requested an explanation for the activity of Mr Bradbury which the latter, quite rightly, refused to give. When he then attempted to walk away, the bullying detective proceeded to grab him by the arm to prevent his movement. DC Edwards stated that Mr Bradbury would be conveyed to a nearby police station, without confirming that he was under arrest, or the reasons for his detention.

DC Edwards proceeded to escort Mr Bradbury to the local police station.  Upon his arrival, Mr Bradbury  was produced before the Custody Officer, Sergeant Knight, who had met him previously

The interaction was recorded on the custody CCTV camera.  The following is a transcript of the conversation between Mr Bradbury, the arresting officer and the custody sergeant.

Mr Bradbury  – Could you tell me for what reason I’ve been arrested, you haven’t err explained.

Police Officer – To establish who your details are cos you haven’t told us who you are.

Mr Bradbury – Am I obliged?

Police Officer – To establish who you are and what you’re doing.

Police Officer – Sergeant I’ve arrested this man cos he was stood outside the back door of Wood Street not Wood Street Headquarters.

Mr Bradbury – Laburnum Road

Police Officer – Taking pictures of vehicles exiting the premises and people exiting the premises and I’ve approached him and asked him why, he’s refused to answer and he’s refused to give me details.

Police Officer – I don’t know if he’s a member of an organised crime group or terrorist or whatever.

Mr Bradbury – Let me take me coat off it’s getting warm.

Police Officer – So I arrested him for something, sergeant.

Custody Sergeant – Ok, right, do you want to just give me a second out back for a moment please.

(and with this the custody sergeant escorted DC Edwards away from the spotlight of the camera, into a back room, where no doubt he challenged the detective as to what had occurred outside and, it is strongly suspected, coached DC Edwards to provide a more ‘reasonable’ basis for arrest than ‘terrorism’. Indeed a few minutes later, both sergeant and the arresting officer returned and all became clear ………..)

Custody Sergeant – Right the officers …hmm.. told me the circumstances with regards to you being brought to the police station, the fact is that you’ve been arrested for breach of the peace okay.  Hmm….

Mr Bradbury – Could I ask some questions please?

Custody Sergeant – You certainly can.

Mr Bradbury – Right how do you come to breach of the peace when I’m stood there not err I’m sure these people have realised that I’ve not uttered one word of bad language.

Custody Sergeant  –  No not in not in here sir no but

Mr Bradbury – Not

Custody Sergeant – err obviously at the…, at the…, at the……..

Mr Bradbury – Is this man accusing me of using bad and threatening behaviour outside?

Custody Sergeant – No, you’ve been …err… argumentative and obstructive with obviously there was there was a breach

Mr Bradbury – But but I’m not obliged to

Custody Sergeant – there was some concern that there be other offences …err… as well so initially the officer brought you in for a breach of the peace.  I’ve checked with the……..

Mr Bradbury – Sorry that’s not correct.

Custody Sergeant – Okay well you you can agree, or disagree

Mr Bradbury – he mentioned okay well I’d like it recorded please

Custody Sergeant – with me as you wish

Mr Bradbury – that he mentioned terrorism.

Custody Sergeant – “Yes that’s no problem I’ve made enquiries with the Counter Terrorism Unit ….hmm…. they’ve …err… confirmed with …err… for me that there’s ..err.. no ..hmm… incidents that of note where you are linked to terrorism or anything like that , there’s no offences that they’re …hmm… they would like to speak with you about so therefore with regard to any criminal side at all there is no criminal offences that you’re here for.” 

Mr Bradbury was promptly released from custody, by Sergeant Knight, as it was clear that even the alternative justification for his arrest – ‘Breach of the Peace’ – was without any foundation. 

Following a subsequent investigation into the incident, DC Edwards ‘clarified’ his version of the arrest circumstances.

In response to a call regarding a man stood at the rear exit photographing vehicles leaving the police car park, he walked to the barrier and saw Mr Bradbury holding a compact camera. The detective (the term is used loosely) claimed he approached Mr Bradbury, identified himself and asked what he was doing.  Mr Bradbury refused to provide an answer and asked what it had to do with him, (DC Edwards). 

Mr Bradbury again refused to account for his actions whereupon DC Edwards told him he was under arrest unless he provided an explanation and his details.  Again, Mr Bradbury refused.  DC Edwards then advised Mr Bradbury he was under arrest for offences under the Terrorism Act 2006.

On challenge, DC Edwards explained that he did not know under what specific section of the Terrorism Act under which he had arrested Mr Bradbury, but that it was on suspicion of the preparation of a terrorist act.

This is, actually, covered by Section 5 of the Terrorism Act 2006, which provides as follows –

Section 5  Preparation of terrorist acts

(1) A person commits an offence if, with the intention of—

(a) committing acts of terrorism, or

(b) assisting another to commit such acts,

he engages in any conduct in preparation for giving effect to his intention.

(2) It is irrelevant for the purposes of subsection (1) whether the intention and preparations relate to one or more particular acts of terrorism, acts of terrorism of a particular description or acts of terrorism generally.

(3) A person guilty of an offence under this section shall be liable, on conviction on indictment, to imprisonment for life.

As will be noted, this is a very serious offence which carries a maximum sentence of life imprisonment. To my mind, it is utterly ridiculous that Mr Bradbury was arrested under this law. Section 5 of the Act is intended to encompass such activities as travelling abroad to Syria to join jihadist groups, financially supporting terrorist organisations such as ISIS, or involvement in a bomb making plot.

It was utterly draconian to attempt to utilise this section of the law to justify the arrest of Mr Bradbury, for what was in reality the non-offence of “refusing to answer an officer’s question”, or indeed “infringing the officer’s sense of power” which I suspect was what was really motivating DC Edwards. Rather than any genuine belief that he was, in Mr Bradbury, confronting a ‘terrorist’. I think this is confirmed by the custody sergeant’s apparent attempt to get DC Edwards to change his ‘script’, as to the reason for arrest, to something that did not seem so obviously outrageous.

There is in fact an offence under Section 58A of the Terrorism Act 2000 which is designed to prevent the eliciting, publication or communication of information about members of the armed forces or police, where such information is designed to assist an act of terror. However, the Metropolitan Police’s own guidelines on this law state very clearly that “It would ordinarily be unlawful to use section 58A to arrest people photographing police officers in the course of normal policing activities” , unless there are further grounds for suspecting that the photographs were being taken to provide assistance to a terrorist.

There is also a power under section 43 of the 2000 Act which allows officers to stop and search anyone who they reasonably suspect to be a terrorist; this would certainly have been a less draconian action for DC Edwards to have taken against him (a simple search rather than an arrest) but he chose not to do so; and it is suggested that this was because he did not really think Mr Bradbury was a terrorist at all, but was just looking for a reason to arrest a man who was – in the officer’s eyes – being ‘disobedient’  or ‘disrespectful’ to him.

In my view, it is absolutely right that Mr Bradbury should take a stand against such egregious behaviour as demonstrated by DC Edwards. Individual liberty – and the right not to have to ‘produce your papers’ when challenged by a police officer, or to refuse to answer an officer who is questioning you because he doesn’t like your face (as it were) – is one of the hallmarks of British democracy, as opposed to a dystopian police state such as existed in Eastern Bloc countries not so very long ago. 

The stretching of powers granted under the Terrorism Act to encompass the harmless if eccentric – even, perhaps, bizarre and annoying – behaviour of individuals such as Mr Bradbury is something which we must absolutely guard against, lest it become a matter of routine for the police to use ‘terrorism’ as a catch-all excuse to arrest anyone they don’t  like, who hasn’t committed any specific ‘proper’ offence; although this is a much more extreme example, look at a country like increasingly authoritarian Turkey, where anti-terrorism powers are used as a matter of routine to justify the arrest of opponents of the government (including journalists and lawyers).

The powers of arrest granted under the various Terrorism Acts must not be taken lightly; and we all, as citizens, journalists or lawyers, have a duty to ‘police the police’ if individual officers attempt, either deliberately, or because they don’t fully understand the law, to misuse those powers. Regrettably, this happens all too often when dealing with West Yorkshire Police.

This is exactly what Mr Bradbury chose to do, by bringing civil claims against WYP for the no less than seven occasions he was unlawfully arrested as described above, or in very similar circumstances. Having threatened the police with litigation, Mr Bradbury’s solicitor, Iain Gould of DPP Law in Bootle, persuaded the police to the negotiating table and a sum of £13,500 in damages was secured for Mr Bradbury, plus recovery of his firm’s costs. Iain is one of the leading police complaints lawyers in the country and was also one of the first in the legal profession to report outcomes of cases on his own widely-read website (read here). 

What will probably prove of even more value in the long term, is the lesson the police have, hopefully, learned from this, and other similar actions police action lawyers have brought on behalf of their clients – not to overstep their powers of arrest, and to ensure that their officers keep their tempers in check, and properly understand the law of the land which they are charged with upholding.

*Clarification* West Yorkshire Police have two officers with rank, name of “DC Edwards”. One based in Wakefield, one in Bradford. The latter was invited to provide the given names of both, as was the police force press office, so as to eliminate doubts as to whom the detective interacting with Mr Bradbury actually was. No response was provided from either.*

Page last updated on Monday 1st April, 2019 at 1255hrs

Picture credit: Stephen Brabury; West Yorkshire Police in Action YouTube channel

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 2015-2019. 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.

If at first you don’t succeed

At the beginning of October, 2018 an exclusive article on this website foretold the retirement of the chief constable of West Yorkshire Police (read here).

Dee Collins did not respond to a private message sent to her, as she had done previously when the topic first surfaced earlier in the year. But the WYP press office reluctantly confirmed the previously concealed fact that she was joining the College of Policing, to oversee a three month training course at their Ryton headquarters, beginning in January, 2019.

The press office, again after being pushed, also confirmed the exclusive news that John Robins would take over temporary command of the force, together with the details of the senior office re-shuffle that would follow.

They denied she was retiring. But pressed a second time on the basis of the strength of the intelligence that she was, there was no response. Instead a lengthy statement was given, by Collins, to Bradford’s Telegraph and Argus, one of a number of ‘tame’ local newspapers in West Yorkshire that is content to provide an all in the garden in rosy public relations service on behalf of the area’s police force.

The T&A article (read here) included this gem: “Although I will be working out of Force, I will keep a keen eye on what is happening in West Yorkshire and contrary to rumours I have seen circulating on social media, I will be returning to my post following secondment!”

At the time, a well-placed BBC source was of the view Collins would ‘return from the College in April, 2019, say her goodbyes, and retire in May’. Other police sources, close to a number of senior officers, said the chief would not return after she left in December, 2018. All those sources are usually well informed.

She would reach 32 years service shortly after the Ryton trip and could choose to leave with a huge lump sum and a yearly pension in excess of £80,000.

Also, the chief constable role in one of the country’s largest police forces has, in all truth, proved beyond her. It would be a sensible time to exit before her personal standing diminishes amidst a further wave of negative publicity for WYP. She survives in the job, largely, because of a woefully weak, and compromised, police commissioner who provides zero effective oversight. Mark Burns-Williamson and Dee Collins are well matched, of that there is no doubt, but the evidence shows that is not to the benefit of West Yorkshire precept payers.

As an experienced police officer, the latter ought also to be aware of the perils of relying on a PCC that applies Grecian 2000 to his hair, usually a reliable indicator of a man who is not what he seems to be. The vain Burns-Williamson appears to have ceased the practice since it was drawn to the wider public’s attention on social media.

That apart, being an amiable, praise-showering, selfie-loving individual and a diversity, equality champion in the wider police service, doesn’t cut it when the force is engulfed in scandal after scandal that Collins appears, or claims, to know nothing about. But deploys precious police resources smearing, and attempting to criminalise, her critics – and spending grotesque sums on PR stunts, and pointless campaigns, to paper over the cracks.

One of the policing command units over which she is routinely effusive is Kirklees. She recently promoted one ex-Divisional Commander to temporary chief (Robins), another to assistant chief (Tim Kingsman) and the most recent (Steve Cotter) to head the prestigious Leeds Division. Yet, Huddersfield is now officially rated the worst place to live in UK. Gun and knife crime are out of control, and lawless gangs give the town the look and feel of The Wild West. Top that off with industrial scale child rape, and trafficking, in the town that WYP, in concert with the local council, chose to cover up and the disconnect between Collins’ blue sky world, and reality, may be readily apprehended.

Regrettably, much the same can be said about WYP’s Bradford Division.

Her flawed judgement of the strengths and weaknesses of other subordinates is also concerning. Regular promotions for such as Robins, Nick Wallen and Osman Khan, both now chief superintendents in key roles, Mabs Hussain, now a controversial ACC appointment at Greater Manchester Police (read more here) bear this out. She also has Angela Williams in her command team, as an ACC, who doesn’t, it is said, have the full confidence of the rest of her fellow senior managers. These are the highest profile examples of a larger number that set alarm bells ringing.

In the event, Robins took over as West Yorkshire Police chief at the beginning of December. The reason for the discrepancy in their press office statement has not been made clear.

Other disclosures obtained via freedom of information requests reveal a further curiosity: The College of Policing are at pains to avoid the term ‘secondment’ for the period Collins will be acting as Course Service Director for the 2019 cohort of the Strategic Command Course (SCC). She is on a ‘flexible attachment’ they are at pains to say. Which appears, taken at its face, to be a device designed to avoid entering into a formal Central Service Secondment agreement. The sharp-eyed will have noticed that the chief constable described it as a ‘secondment’ in her gushing quotes to the T&A. In fact she refers to ‘secondment’ twice. So there can have been no mistake. Especially as Mike Cunningham, the chief executive at the College also refers to ‘secondment’:

“To have a Chief Constable of Dee’s standing in this role reinforces the importance of the course in the development of the future most senior leaders of the Service. I would like to thank both Dee for this commitment and Mark Burns-Williamson, West Yorkshire Police and Crime Commissioner, for supporting Dee’s short secondment to the College of Policing to deliver the course.”.

No mention there of her becoming WYP chief constable because not one other senior police officer in the country could countenance working for PCC Burns-Williamson after the Norman Bettison and Mark Gilmore debacles, in which both former chiefs complained bitterly of betrayal by their PCC. one in a book and the other at the Royal Courts of Justice.

The SCC is an essential stepping stone for officers wanting to progress from chief superintendent to rank of assistant chief constable. Mabs Hussain was a successful candidate in the 2018 version.

Some might say Director of the latest renewal of the testing two module course is a perverse appointment for one who took four attempts to pass her sergeant’s exams and five applications (she says three) to progress from ACC to deputy chief. But, as it appears she was the only candidate for the SCC supervisory role, and a feverish, happy-clappy networker, maybe it is not so strange, after all?

It is, also, worth recalling that Collins was the only candidate when appointed to chief constable at WYP, and Hussain was the only candidate for his new posting at GMP. As was his new chief constable, Ian Hopkins.

A College of Police spokesperson has provided this response to a request seeking confirmation as to whether the WYP chief freely applied for the job of her own volition, prior to the closing date of 10th August, 2016, or was encouraged to ‘apply’ afterwards in absence of any other candidates. An increasingly recurring, and troubling, theme in policing circles.

“There was an open and publicly advertised application process for the role of Course Service Director for the 2019 Strategic Command Course. Chief Constable Dee Collins submitted her application prior to the original closing date and was successful. We are delighted to have a Chief Constable of Dee’s standing and experience to lead the course.”

Looking at the letter inviting applications from Mike Cunningham, disclosed by way of a freedom of information request made by Mr Edward Williams, via the What Do They Know website (read in full here), it could not be described as ‘open and publicly advertised’. It appears to have been sent to the 40, or so, eligible chief constables in the UK. No-one else.

The good news, however, is that the College are reimbursing WYP in full for her salary costs, benefits, expenses and overtime whilst she is deployed there. A question that PCC Burns-Williamson declined to address when the issue of the departing chief constable was put to a meeting of his Police and Crime Scrutiny Panel on 9th November, 2018. It also seems that neither the Panel Secretariat, nor any of its Members, were aware of the Memorandum of Understanding (MoU) which was, allegedly, signed three weeks before on 19th October, 2018.

“The Panel saw the benefits of the Chief Constable working in this role and the learning that she will bring back to West Yorkshire as positive”, said a PCP spokesperson. “There was no specific question asked of the PCC regarding the Chief Constable’s remuneration”.

Backdating correspondence, documents is a persistent, and highly disconcerting, habit within WYP and the PCC’s office, so no reliability can be attached to the date on the MoU, absent of disclosure of collateral documents.

Dee Collins has been made aware of this issue many times, and has even indulged herself on one occasion, but does nothing whatsoever to address it. As she fails to do with so many other ethical, professional transgressions of her favoured clique. Which does sit easily with her appointment as Course Director of a group of future police leaders.

It is not known, at present, if Dee Collins retains her other key position as Air Operations Certificate Holder with the troubled National Police Air Service during her flexible attachment. Her head-in-the-sand management style was largely responsible for the recent, and highly publicised, removal from post of the NPAS chief operating officer (read more here). Another exclusive broken on this website.

NPAS was also the subject of scathing criticism in a report published by Her Majesty’s Inspector of Constabulary in November, 2017. It cited ‘inept management’ as a key issue to be addressed. The two most senior figures in NPAS are, unsurprisingly, Collins and Burns-Williamson.

A request for confirmation of Ms Collins’ continued tenure has been made to the NPAS press office. Aresponse is still awaited.

Page last updated on Saturday 21st December, 2018 at 2020hrs

Picture credit: Wakefield Express

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 2015-2018. 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.

 

When the ‘cover-up’ becomes the story

Hi, Mabs. Ian Hopkins speaking.”

So began the search for a new member of the most troubled command team in British policing. Even before the post was advertised. In footballing parlance, Chief Superintendent Maboob “Mabs” Hussain from the neighbouring West Yorkshire force (WYP) had been “tapped up”.

Hopkins, the Greater Manchester Police (GMP) chief constable, ultimately, and he thought seamlessly, secured the transfer of Mabs from a rival team across the Pennines. Even though the tapping up did cause some discomfort within the GMP command team, emails disclosed under the Freedom of Information Act reveal.

The phone call was made on the same day that Hopkins and his deputy, Ian Pilling, claim they decided that another assistant chief constable was needed to bolster their dwindling team: 19th July, 2018. But no notes in day books were made, no meeting or briefing notes, no team discussion, no decision rationale, no disclosable data at all. Just a spur of the moment, informal discussion it seems.

It also appears that the police and crime commissioner was not consulted, either, as required by law.

But, those not so minor issues apart, all seemed fine and dandy; slick dresser Mabs had got a promotion, some might say well-deserved, and a pay rise of around £40,000, including benefits; Hopkins had been able to disguise the fact that no other senior police officer in the country wanted to work for him AND he had a black minority ethic (BAME) face in his leadership team, to underscore his commitment to the police service’s obsession with diversity. Smiles and handshakes all round.

Except that Hopkins had the dubious distinction of having, at that time,  TWO disgraced assistant chief constables on long-term absence from the force, with neither expected to return. The cost to the taxpayer was around £250,000 per annum. Which, in terms the man, or woman, on the crime-riddled, poverty-stricken streets of Manchester might understand, would pay for ten bobbies on the beat. Or, more than adequately feed fifteen families of five for a year.

The first of those, ACC Steve Heywood, is presently awaiting a charging decision from the Crown Prosecution Service (CPS) after an investigation by The Independent Office for Police Conduct (IOPC, but perhaps better known as the IPCC). The latter said, in May 2018:

“Our investigation looked at the evidence given by ACC Steven Heywood at the [Anthony Grainger] inquiry, particularly in relation to how he recorded information in his police (sic) log book.

 
 

Heywood has been dogged by other major policing scandals since his full promotion to the command team in April, 2013. He had been in a temporary ACC role for eighteen months prior. He has been absent from the force for eighteen months on full pay. Again, a six figure salary plus benefits.

On 14th November, 2018, after almost a week of rumours swirling around social media, news was released to the press, by GMP, of Heywood’s retirement. Apart from his own failings, that led, at least in part, to the needless death of Anthony Grainger, Heywood has always sought to conceal his role in the handling of notorious villain, Dale Cregan, who eventually, and tragically, shot and killed two young Manchester police officers. The subsequent, and some say, contrived, sale of Heywood’s house also developed into a murky scandal centred around whether he was at risk from Cregan, at the time locked up in the Category AA wing (known as The Cage) of Strangeways jail. The artful financial wangling was followed by the inevitable, long-running, multi-layered GMP ‘cover-up’. The troubled ACC was also Head of Public Protection in GMP for at least some of the period covered by the Rochdale grooming scandal. The vexed question of ‘who knew what’ within the police force is presently being addressed via an inquiry run by the Greater Manchester Mayor.

The infamous ‘Boobgate’ scandal claimed the second of the miscreant ACC’s: Rebekah Sutcliffe, whom many believe owes her continued, if pointless, place in the police service to the astute advocacy of John Beggs QC. Who, somehow, managed to persuade a disciplinary panel, that included Sir Thomas Winsor, Her Majesty’s Chief Inspector of Constabulary, to conclude proceedings with a written warning, rather than dismissal. A remarkable achievement, in the light of the allegations against her and a previous chequered history with the force. Sutcliffe, who infamously told colleague, Superintendent Sarah Jackson, that she would be “judged on the size of her tits” is presently seconded to Oldham Metropolitan Borough Council, where she is overseeing a project to encourage exercise, healthy living and healthy eating (watch short video clip here) . A demeaning ‘non-job’ costing taxpayers £109,000, plus benefits, per annum. She was reprimanded in 2010 for trying to pull rank and gatecrash a Labour party conference hotel, to attend a drinks junket, when she had no accreditation to enter the secure site. There was also an IPCC ivestigation into her failure to declare a relevant relationship with chief superintendent, Paul Rumney, when chairing a disciplinary panel. Rumney, never far from controversy himself, was Head of GMP’s Professional Standards Board at the material time, thus creating a clear conflict of interest. That neither, oddly enough, appeared to notice at the time.

49 year old Sutcliffe’s secondment to Oldham council was due to end in September, 2018, but a spokesperson for the latter recently told Police Oracle: “There is no agreed end date for the secondment at this time. Rebekah is still the Strategic Director of Reform”. GMP refused to comment on if, or when, she would be returning to the force. It is believed she has five years of police service remaining before she becomes eligible for retirement. Her biography has been deleted from the GMP chief officer team webpage.

At a time when the police service cannot give away deputy and chief constable roles, another ACC, Debbie Ford, recently secured a rare neutral-rank transfer from GMP back to her former force, Northumbria Police (read here). Having told at least one former senior colleague, retired superintendent Pete Jackson, she was uncomfortable with being associated with scandal after scandal that routinely engulfs the force. As the former murder detective wryly observes: “Challenging the unethical, unprofessional conduct of her peers was an option she might have considered, rather than heading for the exit door”. There may be other personal, or professional, reasons why Ford left GMP, of course. But, if there are, the public is in the dark. Ford joins Sarah Jackson as a GMP departee, after the latter also sought a transfer from the troubled Manchester force to the less demanding rural acres of Cumbria.

Garry Shewan was another who walked away from an ACC role in the UK’s fourth largest force, doing a ‘moonlight flit’ as GMP’s £27 million iOPS technology upgrade, for which he had portfolio responsibility, crashed and burned. The budget for the project is believed to have roughly doubled and, incredibly, Shewan claims credit for a £60 million IT project on his LinkedIn profile.. “Honest Cop” Shewan, like Heywood and Sutcliffe, had also been dogged by scandal over the previous four years as both the author of this piece, and an increasing number of well respected police whistleblowers, rounded on him and exposed a number of troubling, alleged misdemeanours. Some of them very well evidenced. In one particular case, that resulted in the controversial, and many say unjust, dismissal of a junior officer, ex chief constable Sir Peter Fahy allowed Shewan to investigate complaints about himself. They had been made by the discipline lead of the local police federation, no less. In another case, Shewan wanted to manage a conduct complaint about him outside the statutory framework and through a restorative justice process in which he was the controlling influence. He had admitted giving a misleading statement about knowledge, or otherwise, of an investigation being carried out by Fahy into another chief constable, Lincolnshire’s Neil Rhodes. The issue being that Shewan had withheld crucial information that could have significantly informed that probe. The Operation Redbone outcome was significantly flawed as a result.

Hate crime champion, Shewan, was also not slow to complain about feeling ‘harassed’ when tackled about his conduct.

Yet another Manchester assistant chief constable to head for the exit door, as trouble rained down on him, was Terry Sweeney. His retirement triggered an angry response from the Independent Police Complaints Commission (IPCC, now IOPC).  He was under investigation by the IPCC for two separate allegations, after being served with a gross misconduct notice in relation to the disposal of body parts by GMP from victims of the notorious Harold Shipman. In addition, he was served with a criminal and gross misconduct notice in respect of his role in an allegedly poorly-handled investigation into a now-convicted child sex offender, Dominic Noonan. Sweeney was also involved in the alleged ‘cover-up’ of the unauthorised bugging of offices, occupied by senior leadership team members, by Superintendent Julian Snowball, who had purchased equipment for his illegal activities on the internet. Terry Sweeney was also formerly a Commander of GMP’s Rochdale Division and is yet another part, however small, of the ‘who knew what’ police mystery concerning child sex abuse in the town.

One of Sweeney’s sycophantic clique, during this troubled period, was Detective Chief Inspector (as he was then) John Lyons, latest holder of the poisoned chalice that is Head of Ethics and Standards at troubled Cleveland Police. Lyons is remembered well by former GMP peers for a discreditable, unpleasant, early morning drunken incident in Bolton town centre, in which subordinate officers were verbally abused. Sweeney is said to have smoothed the path so that his friend faced no meaningful sanction.

The IPCC Commissioner overseeing the Sweeney investigations, said at the time: “Greater Manchester Police has informed the IPCC that ACC Terry Sweeney is retiring on 31 October, 2014. The IPCC cannot prevent that happening, but we have been assured that ACC Sweeney will cooperate with our investigations after his departure.

“A police officer resigning or retiring when they are subject to investigation does not serve anyone’s purpose and can frustrate our investigations leaving important questions unanswered. Such a practice can only be damaging to public confidence in policing. We will continue pursuing all lines of enquiry before publishing our findings and evidence so that the public can decide for themselves.”

Sweeney faced no further action. Strangely, the IPCC report can no longer be located on their website.

Against this alarming, and continuous, backdrop, Chief Constable Hopkins has also been under heavy siege for the past twelve months, as a series of national newspaper front page splashes, in depth exposés, and a call for a public inquiry, has kept both him, and his scandal-rocked force in the headlines. For all the wrong reasons, it must be said. He was also lambasted over the Boobgate scandal, and some squarely put the blame on him for not nipping Becky Sutcliffe’s drunken antics in the bar, whilst stood with her at the boozy women’s policing function. Instead he delegated that unpleasant, hazardous task to a subordinate, whilst he sloped off to enjoy another ‘freebie’ at a nearby luxury hotel (read more here). Which might readily explain why no-one wanted to work for him as an assistant chief constable and end up with a reputation tarnished in the manner of Heywood, Shewan, Sutcliffe or Sweeney. Or have to backtrack to their home force in the manner of Debbie Ford.

An independent observer might also conclude that, given the present circumstances, and sensing there may be even worse to come, you would have to be desperate to walk into that firestorm.

Nevertheless, Hussain took up the role of Assistant Chief Constable at GMP on 1st October, 2018. He was the only candidate who applied, after the approach from Hopkins, and it is said, the only candidate interviewed; although no documented evidence of such an event has been disclosed to the author of this piece, after what have been quite exhaustive enquiries: Two freedom of information requests (one each to GMP and WYP) concerning the appointment; enquiries made of both police force press offices; fairly lengthy correspondence with GMP Deputy Chief Constable (DCC) Ian Pilling and one way correspondence with WYP Chief Constable, Dee Collins. Whom, it must be said, has this unappealing, unethical, unprofessional, and repeating habit of burying her head in the sand at the first sign of trouble. Particularly, when it is one of her ‘favourites’ under scrutiny. Mabs was, most certainly, in that group.

Documents disclosed by WYP under FOIA reveal the usual inconsistencies. Collins claims the matter of Mabs’ ‘tapping-up’ on 19th July, 2018 by Hopkins and subsequent application to GMP, was first discussed amongst her own command team the day after he was appointed (4th September, 2018). The only record in her day book, she says, is on that same date and a copy has been disclosed.

Yet, Collins had assisted in Mabs’ application, in early August, to the extent that, in section 11 of the application form (a blank form can be viewed here) it was required to be completed by the applicant’s chief constable, she filled it in and sent it back to Hussain, via email, with the jolly message: ‘If it is not what you want, alter it to suit’. 

No note in her day book about that event. Or, if there is, it has not been disclosed. A retired WYP command team member has revealed that, under Dee Collins’ leadership, the priority is what to EXCLUDE from notes of their meetings, rather than maintain an auditable record.

Taken at its face, and by reference to the disclosures made, so far, by both forces, Hopkins did not contact Collins. Which, given the recent history of each of those two police forces covering up for the other, and the fact that they are neighbours, with a large shared border, is difficult to contemplate.

There is no documented record, either, of Mabs contacting his own chief constable, or vice versa, after the Hopkins phone call.

The fact it was public knowledge, broadcast by Collins, no less, that Mabs was in line for the next ACC role in his home force, where he had served his entire 22 year police career, simply adds to the intrigue as to why a popular, high achieving, Bradford council estate lad made good, would take such a risk with this move to GMP.

At the time of his appointment as ACC, this is what a gushing Mabs said on the GMP website: “I’m thrilled to have been given this opportunity. I have great admiration for the work GMP has done for some time, knowing they are a similar size to WYP and respecting the way they have responded to particularly challenging times over the years. Their commitment to public service and the demands I can expect to face in my new role were all things which appealed to me to join the GMP family.”

So, let us look at this statement in more detail:

He was certainly correct about being ‘given’ the opportunity. Gift-wrapped, with a ribbon on top.

But then his fresh-from-the-strategic-command-course-sycophantic-management-speak sets the alarm bells ringing (Mabs had successfully negotiated the necessary College of Policing test six months earlier):

Firstly, he does not explain what it is he admires about GMP that places it above his former force. Both have a dreadful history of covering up industrial scale child sex abuse Rochdale, Oldham, Bradford (Mabs’ home city for all his life), Dewsbury, Keighley, Halifax, Huddersfield, Manchester Curry Mile, Mirfield. Similarly, their failures to tackle volume crime, particularly burglarly, are legion. Both have gun, and knife, crime that is out of control. Is all this ‘the [GMP] commitment to public service’ to which he refers? But, moving on, both have professional standards departments and counter-corruption units that are perennially inept, and, arguably, corrupt. Both have ACPO teams, past and present, mired in scandal. Both have chief constables that are, quite plainly, out of their depth. Both have the unenviable reputation for outrageous, high profile cover-ups. So what is it that makes GMP ‘admirable’, one has to wonder: The debacle in the aftermath of the Manchester Arena bombing; the Operation Grantham stored body parts scandal; or a multi-million pound organised crime investigation that collapsed after allegations of police officer corruption? These three examples are drawn from a lengthy list that also includes Operations Poppy 1 and 2, and Operation Leopard, of which more will be heard in a separate articles.

Secondly, no-one who knows even a little about policing, or reads the national newspapers, or watches police documentaries on TV, or listens to radio programmes such as File on 4, could conclude anything other than, in its present form, run by Hopkins, Greater Manchester Police is a scandal-hit shambles. Perhaps Mabs, an alert thief-taker, missed all that?

Thirdly, he describes Greater Manchester Police as ‘a family’. The implication is happiness, cohesion and belonging. Which couldn’t be further from the truth. There is a rush for the exit door into careers such as train, or tram, driver;  officers count the hours and days to retirement; morale in the force is at rock bottom says the GMP Police Federation; faith in the leadership team is correspondingly low, and, so stressed are the frontline officers with the working environment, record numbers are calling in sick. Add to that the internal strife caused by over-promotion of on-message sycophants, who have never seen an angry man; obsessive internal witch-hunts conducted against officers prepared to call out wrongdoing, and then draw your own conclusions as to whether this den of skulduggery, and two-faced-gittery, is a family of which anyone sensible would really want to newly marry into. Especially, if it means uprooting your own family from an area in which you’ve lived all your life, and leaving an organisation in which you started your career, progressed at a pleasing rate, and have always been well regarded.

For his part, and at the same time, Chief Constable Hopkins said of his new recruit: “I’m delighted to welcome Mabs to the GMP family. He is an extremely experienced officer and he will help us to continue to drive the force forward”. Over a cliff, presumably? As for police ‘family’, Hopkins is on his fourth, having previously worked in three of the smaller county forces before making the quantum leap to Manchester in 2008.  Becoming chief constable of GMP, by default, in 2015, as no-one else applied for that job, either.

As one might expect, the Manchester Evening News (MEN), in what police whistleblowers say is their adopted role as the public relations arm of GMP, ran a ‘Welcome to Mabs’ puff piece, as Hussain gave his first exclusive ‘interview’, just one day after joining the force (read full MEN article here).

Despite controversy over the appointment, broadcast widely on social media, MEN avoided asking any difficult questions. It all had the look, and feel, of a pre-planned ‘corporate comms’ operation, with softball questions, and answers, agreed in advance, to avoid any embarassing issues surfacing, inadvertently.

There was, however, one interesting passage: Mabs was, presumably, well prepared when asked this question by award-winning MEN reporter, Neal Keeling:

– Is it true you and your family get stopped routinely when you fly abroad?

“Yes. I do get stopped regularly, in particular flying to the States – my brother lives in America – and I do visit him regularly. I have been taken off a flight, because they forgot to check me getting onto a flight, which was rather embarrassing. It does frustrate me. I can understand the reason for checking people who fit a certain age group, ethnicity, and profile. But it does annoy me that it is happening so often.

“As a result I did write to Homeland Security. The Director General replied saying they couldn’t confirm or deny if I was on any international list. I have what they call a redress number, which I can use when I fly, which they say should hopefully limit the level of inconvenience caused. You have to go with the flow.

“It is frustrating. But people have a job to do. Flying out of America I still get stopped. I usually get told my name has been flagged up, and to expect some delay. I don’t mind security checks, it shows we are taking terrorism seriously.”

Even more interestingly, Mabs was not asked these questions by “Killer”, as Keeling is known to friends and colleagues:

– What, or who, persusaded you to apply to join GMP?

– Why uproot your family and leave a force where you have served all your career?

– Was the competition for the job, and the interview, tough?

– Are you concerned about the welter of bad publicity that has engulfed GMP recently, particularly in The Times and The Sunday Times, and on BBC television and radio?

– What do you think of two serving ACC colleagues being removed from the force? One of whom may be facing criminal proceedings and the other who brought national shame and ridicule on GMP and the city of Manchester.

– Are you concerned about another ACC retiring in what was, effectively, a moonlight flit after grotesquely failing on a major infrastructure project?-

– Has this poisoned chalice been handed to you?

– Have you questioned why and how the ACC vacancy arose?

– Have you spoken to ACC Debbie Ford about why she left?

– Joining from another force that has history of ‘problem’ senior officers (Norman Bettison and Mark Gilmore being very high profile examples), has this better equipped you to deal with a low calibre command team such as GMP?

– Will you robustly challenge inappropriate conduct of senior colleagues. Or look the other way, or walk away, as is the tradition in GMP?

– Were you asked in interview about the persistent allegations, circulating on social media, made by WYP whistleblowers against you?

– Have you been asked by either Mr Hopkins, or Mr Pilling, about them since you joined?

– Is there any truth in those allegations? Which include the proposition of failing counter terrorist unit vetting for a number of years.

– Were the whistleblower allegations robustly, and thoroughly, investigated by WYP, before you left, so that the air could be cleared and you could deal with any residual issues. If, indeed, there are any at all, on your application form and vetting declaration?

Whilst the MEN was giving Mabs the VIP treatment, Questions were being asked, by two investigative journalists, of the police press offices in Manchester and West Yorkshire about the allegations against Mabs. One of which, it is said, has been the subject of a complaint made by a serving WYP superintendent (also served as a detective chief inspector in professional standards for several years) and close working colleague.

Essentially, (i) have they been investigated – and (ii) what was the outcome?

Straighforward enough, and not at all unreasonable to expect honest answers from two of the country’s law enforcement agencies. But, no, all questions have been glibly deflected by both press offices, to both journalists, in a manner that seemed calculated to cause further exasperation.

Both those journalists, the author of this piece and the BBC’s Neil Morrow, readily accept that, if the wall of silence is maintained by both police forces, it is almost impossible to get to the truth of the issue of whether an investigation took place, or not. But, it can be said, with some certainty, that had one taken place, and cleared Mabs, then neither force would have been slow to trumpet that fact; discrediting the whistleblowers and those adopting their cause.

There has been email correspondence between Ian Pilling and Neil Wilby that appears to confirm that no checks have been made by GMP over the vetting issue and they had not asked, as of 14th September, 2018 any questions of WYP, at all, concerning the allegations against Mabs. The announcement of his appointment as the new GMP ACC had been made ten days earlier. The following day, 5th September, 2018, Pilling was passed, in strict confidence, correspondence between Neil Wilby, the WYP press office and Dee Collins dating back to January/February, 2018. The serving superintendent is copied into that correspondence. Which is shortly after the latest of the alleged incidents concerning Mabs. DCC Pilling cannot claim not to know the identity of that officer.

The official GMP line, says Pilling, is that if there has been any allegations concerning misconduct, during his service with WYP, then they were matters for the Appropriate Authority of that force, Chief Constable Collins, to deal with, not himself or Ian Hopkins. He was confident such an investigation would have been undertaken, but was not going to ask the question – and still hasn’t, on the evidence available. On 14th September, 2018, DCC Pilling says that he forwarded the concerns over the allegations to the West Yorkshire chief constable.

Following freedom of information request to both GMP and WYP, it appears that Ian Pilling did NOT contact Dee Collins, by email or letter, at least, to make enquiries as to whether that investigation into Mabs did, in fact take place. He didn’t contact DCC John Robins or Head of Professional Standards, Osman Khan, either. Neither did Ian Hopkins, nor his own Head of Professional Standards, Annette Anderson, contact any of the WYP officers named here.

It was also established, from the disclosure arising from those same requests, that there appears to have been no contact between any of the same three GMP senior officers and either the College of Policing or the National Police Chiefs Council, concerning Mabs’ appointment or any vetting concerns. The College’s senior selection team were made aware in January, 2018 of the whistleblower concerns, but no email correspondence between the College of Policing and either WYP, or GMP, has been disclosed upon request.

Dee Collins begins a three month secondment to the College of Policing in January, 2019.

A separate information request to the Greater Manchester Combined Authority seeking disclosure of correspondence between the de facto police and crime commissioner, Deputy Mayor of Manchester, Beverley Hughes, and her chief constable has, so far, been stonewalled.

By way of section 40 of the Police Reform and Social Responsibility Act, 2011, the chief constable must consult the Police and Crime Commissioner (the Deputy Mayor in the case of GMCA) before appointing a person as an assistant chief constable of the force.

The response to the information request provided by the PCC is highly questionable. She claims that in respect of the appointment of deputy and assistant chief  constables, her oversight responsibility is confined to private chats between herself and the chief constable. No notes, or minutes, taken and no email traffic between the two. Indeed, no retrievable data is held says Baroness Hughes.

Material disclosed by GMP contradicts that position. Internal email correspondence between Ian Hopkins and Ian Pilling say she was sent a copy of Mabs’ application form, plus background papers, on 29th August, 2018. Put another way, the Deputy Mayor of Manchester has lied to journalist, Neil Wilby.

The stated position of the Deputy Mayor, according to her written response to the information request, has been robustly challenged. But no response had been provided by her within the required four week period under FOIA and the Information Commissioner’s guidance.

A complaint has been lodged with the Information Commissioner’s Office concerning the handling of the request, and a further complaint is being submitted to the appropriate authority alleging honesty and integrity breaches by Beverley Hughes. In this case, the Greater Manchester Police and Crime Panel.

Baroness Hughes, another living, breathing example of the abuse of the ‘honours’ system does, of course, have ‘previous’ for lying. Having resigned as a Labour government minister, in 2004, for doing just that – and in very similar circumstances to those prevailing here: Denying she’d received a memorandum when it was readily proved that she had not only received the document, but acted on it.

Whether, or not, it is possible to get to the truth of the WYP whistleblower allegations against Mabs Hussain is a moot point, without an unequivocal statement from either Ian Hopkins, Dee Collins, or Mabs himself. But, as with so many policing issues over the years, it is now the ‘cover-up’ that becomes the story.

In this particular case, without the ever-lengthening mystery, and the lies that inevitably follow, surrounding this matter, there simply is no story. It could have been put to bed by a two paragraph statement from WYP in February or March, 2018.

This cover-up may yet claim some very high profile scalps, even if the new GMP assistant chief constable emerges untarnished and free to get on with his new job.

The press offices of GMP, WYP and the Deputy Mayor’s Office have all declined to comment. Indeed, the latter two have not even acknowledged the request.

The enquiry to the GMP press office ends thus: “For the avoidance of doubt, and this has been made clear, previously, to DCC Pilling and WYP chief constable Collins, I [Neil Wilby] have no personal, or professional, issues with ACC Hussain. Other than the whistleblower allegations, he is known inside and outside of WYP to be a popular, professional, high achieving police officer. I am more than content for those views to be shared with Mabs.”

Statements had been specifically requested from Mabs Hussain, and Dee Collins, that directly address the issue of whether the police whistleblower allegations have been appropriately recorded, referred and subsequently investigated.

From the ensuing silence, inference can be drawn as to whether the answer is in the affirmative, or otherwise. Not one journalist or police officer, serving, ex-, or retired, spoken to believes it has.

The lay reader is invited to draw their own conclusion as to where that leaves the GMP chief constable and his latest command team recruit.

There is no ACC Maboob Hussain biography on the GMP chief officer team webpage, which was last updated on 29th October, 2018. A month after mabs joined the force (read here).

Page last updated on Saturday 24th November, 2018 at 1725hrs

Picture credit: Greater Manchester Police

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 2015-2019. 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.

Crash landing as helicopter boss returns to work

Following the exclusive published on this website last month – and subsequently picked up by the national press – more startling revelations have come to light.

After a period away from his office, reportedly on sick leave, Chief Superintendent Tyron Joyce returned to work at West Yorkshire Police headquarters in Laburnum Road, Wakefield, on Monday 15th October, 2018.

WYP HQ is also the administrative base for the National Police Air Service (NPAS), of which Joyce is Chief Operating Officer (COO).

Last month, Joyce was given notice of a large number of complaints made against him by NPAS staff. He was, at the time, reportedly denied access to his office and police computer systems. Captain Oliver Dismore took over as temporary COO.

Joyce’s return to work was not at all welcomed by some members of NPAS staff, particularly those who had made complaints against him. They had been promised by officers in WYP’s Professional Standards Department (PSD) that, if Joyce returned to work in police HQ, it would be in a location remote from them.

The return to his office had been agreed between PSD and the Superintendents’ Association, who are providing both professional and pastoral support to Joyce.

Complaints about Joyce’s proximity were made to Captain Dismore by NPAS staff involved in the misconduct allegations. Dismore, in turn, made representations to Deputy Chief Constable, John Robins. The latter has had portfolio responsibility for PSD since 2014.

On Tuesday morning, having been tasked by Robins, Assistant Chief Constable Angela Williams went to Tyron Joyce’s office and asked him to leave. A confrontation ensued between the two. The upshot is that Joyce is now working remotely from his staff.

Both WYP and NPAS were approached with a series of questions concerning what has been reported by a police whistleblower. Neither WYP, nor NPAS, even provided an acknowledgement. Both press offices have previously declined to confirm that C/Supt Joyce was under investigation, or what class of misconduct was alleged.

The Superintendents’ Association responded promptly with a statement from Victor Marshall, Professional Standards Co-ordinator:

We are supporting a member who is under investigation for alleged misconduct.

We await full details of the allegations“.

Under the overall control of Robins, WYP PSD has staggered from crisis to crisis, over the past four years. On any independent view, and, from the limited details known to date, the Tyron Joyce investigation is another cack-handed debacle.

The complainants are angry; Joyce is not having the benefit of a fair, impartial, well-managed disciplinary process and his professional body is, quite plainly, frustrated at the lack of specification of the complaints.

Little wonder that whistleblowers are coming forward, in increasing numbers, as they lose any remaining faith in the leadership of both the force and NPAS. Interestingly, Dee Collins is in charge of both.

In another exclusive article on this website, her intention to retire early next year is forecast (read here). The force, and Ms Collins, have repeatedly refused to confirm, or deny, that it will be April 2019 when she goes.

It cannot come one day too soon for a force conspicuously absent of visible leadership and, seemingly, bereft of the requisite ethical and professional standards.

Page last updated on Sunday 31st October, 2018 at 19.50

 

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 2015-2018. 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.