Hero police officer sues chief constable over racial and religious discrimination

On Thursday 16th January, 2020, at the Leeds Employment Tribunal centre, a final hearing into claims of racial and religious discrimination against West Yorkshire Police will open. A serving police sergeant, Umer Saeed, is the claimant. An accomplished individual, with a BSc degree in Business Administration and Management and over 20 years experience as a police officer; a large part of that in specialist roles.

The hearing is expected to last for twelve court days with some highly-charged evidence expected to be heard from the witness box. Cross-examination is likely to be a lively affair as WYP’s ‘go-to’ counsel, Olivia Checa-Dover, yet again takes the stage. She has recently represented the police in two other high profile civil court cases, featuring a Bradford doctor, Abdul Rashid (read more here) and a retired police constable, Kerry Perkins (read more here).

Umer Saeed is represented by Rebian Solicitors and their instructed barrister is Adam Willoughby of Broadway House Chambers.

As many have done before him, Saeed alleges that the ‘cover-up’ of discrimination, both against him and others in the force area, goes to the very top of the force’s hierarchy. It is anticipated that around twenty witnesses will give testimony to the tribunal, unless their witness statements are admitted into evidence in the meantime. It is customary in these proceedings for the police to turn up with a small army of lawyers, witnesses and observers, regardless of cost to the taxpaying public.

The well-informed might, quite rightly, muse as to why the chief constable did not take steps to compromise the Saeed claim, with its high potential for serious reputational and financial damage to the force. But it may well be that he was overruled by the Police and Crime Commissioner’s highly litigious chief executive, Fraser Sampson. A noted wastrel when public funds are in issue. His wider role also encompasses general counsel to the police, giving him overall control of the force’s legal department. Indeed, from personal experience, I can say that he regards the WYP Head of Legal Services with scarcely concealed disdain.

The PCC signs off all cheques for the police, of course, as part of his statutory remit. His office has not responded to a press enquiry on the subject of diversity and inclusion – and how they come to be facing the class, and scale, of allegations made by Sergeant Saeed.

Interest in the case is, undoubtedly, heightened when one takes into account the standing of Umer Saeed as a nationally known figure in Black and Muslim staff associations. He is Chair of the West Yorkshire Black Police Association, and General Secretary and a Cabinet Member of the National Black Police Association.

He is also a trained Police Federation representative and speaks four languages; Arabic, Punjabi, Slovak, Urdu. He joined the police service in June, 1999.

In February 2015, he received national prominence when he broke into the kitchen window of a burning house and saved the lives of a mother and two young children in Ireland Wood, Leeds. It was an outstanding act of bravery and Saeed had this to say of his heroism: “The smoke was acrid and I couldn’t breathe but I was focused on finding them and getting them out in one piece. It was quite a disorientating situation with the smoke alarm going off.”

His District Commander, Temporary Chief Superintendent Mabs Hussain, quite rightly commended the officer’s work: “PC Saeed clearly displayed the qualities of bravery and professionalism that we so often see from our officers and staff in situations where people are in danger.

“He could see this family needed immediate help and his training gave him the confidence to assess the situation and intervene to bring them to safety from a potentially life-threatening situation.”

Hussain has since moved onto Greater Manchester Police, in controversial circumstances (read more here), and a well placed source on his old patch tells me he has not sustained that support for his fellow BME officer over Saeed’s discrimination claims. This would surprise few close to the seat of the action at both GMP and WYP, as ‘top brass’ closing ranks at the first sign of trouble for them, either individually or as as a police force, is de rigeur. Indeed, Hussain has been reported recently as claiming that well-evidenced and highly publicised criticism of his present chief constable, Ian Hopkins, by some distance the worst in the country (read more here), constitutes ‘a hate campaign‘.

As a footnote, and by way of balance, it should be noted that, back in 2013, Umer Saeed also featured in the high profile Anthony Ramsden case, involving WYP and the thoroughly disgraced Independent Police Complaints Commission (IPCC), following an assault at Leeds United football ground in 2011. A widescale, dishonestly grounded  ‘cover-up’ by both the police force and watchdog was, eventually, exposed.

A High Court case that followed is now an oft-cited legal authority in police complaints cases. Saeed was one of six Police Support Unit (PSU) officers giving evidence whom the force, and the IPCC, claimed ALL corrobated one another. When disclosure was eventually wrested from WYP, not ONE single statement corroborated ANY other. The judgment (read in full here) did not reflect the full transcipt of the proceedings which, at very considerable expense, Mr Ramsden took the trouble to obtain. Another demonstration of the seemingly unwritten public policy of at least some of the local judiciary that demands every conceivable accommodation be granted to West Yorkshire Police when determining matters potentially adverse to the public’s confidence in them.

No criticism of PC Saeed (as he was then) should be inferred: Even though he was the only officer who admitted striking a member of the public, in the subject area outside the Elland Round ground, with his long baton, and, therefore, the one most likely to have hit Mr Ramsden, his witness statement was easily the most frank, and credible, of the six.

I declare a professional interest, having acted as police complaints advocate for Mr Ramsden, and being adjacent to the facts throughout. I also assisted in the placement of widespread local, regional and national media coverage of the case.

Over the past ten years there has been persistent, and often very damaging, publicity over the way West Yorkshire Police treats its black and minority ethnic (BME) officers and, on the evidence of some troubling civil court cases, members of the public of colour, too.

In May 2009, the Sunday Telegraph published an article following the leaking of a dossier that was highly critical of the force’s notorious Professional Standards Department and their discriminatory handling of complaints against BME’s. This followed a series of accusations from the officials at the local branches of the Police Federation and the National Black Police Association. The WYP talking head was Deputy Chief Constable, David Crompton, later to fall into repeated disgrace as chief constable at beleagured South Yorkshire Police (read more here). He denied there was a problem.

In March 2011, PC Kashif Ahmed had all ten charges against him dismissed by a judge at Bradford Crown Court after revelations about the seriously flawed way officers had investigated the case. HHJ Peter Benson, ruling in his favour to stay the prosecution, found that there was a “very significant irregularity and impropriety at the root of the investigation” and the whole process was “tarnished”.

Judge Benson described two police witnesses, Detective Sergeant Penny Morley and Detective Constable Karen Wade who gave evidence in court during Ahmed’s application to dismiss the case, as “evasive.” He went on to say that Morley, who opened a CD document containing privileged contact between Mr Ahmed and his solicitor, had not told the truth. It is beyond incredible that Morley remained a much-favoured officer in WYP’s Professional Standards Department until ‘retiring’ late last year. Her personal friendship with ACC Angela Williams, who has publicly described Morley as ‘wonderful’, enabled her to re-start at WYP as a civilian officer immediately after her warrant card was handed in. Obviously, on this evidence, being called a liar and rubbish at the job, by a circuit judge, is no handicap in the ranks of West Yorkshire Police.

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Kash Ahmed later issued a civil claim against the police alleging a “witch hunt” against him by the PSD officers, led by another disgraced officer, DCI Steve Bennett (read more here). Having to represent himself in court against the force solicitor, experienced counsel and a small army of officers giving evidence against him, his claim, perhaps understandably, only succeeded in part and he had a sizeable costs award ordered against him.

Dr Rashid, whose civil claim is referred to in the second paragraph of this article, is a highly respected professional, of Asian origin, who also claims, with considerable justification, that he was the subject of a “witch hunt” by WYP and that, in the particular circumstances of his case, if he had been a white, middle-class doctor he would not have been subjected to the same degrading, disproportionate, disgraceful treatment. His civil claim was dismissed after a extraordinarily one-sided hearing, but he was recently given permission to appeal the decision of Mr Recorder Nolan QC, by a High Court judge. The hearing of the appeal is presently listed for 13th February, 2020 in the High Court in Leeds.

Olivia Checa-Dover unsuccessfully sought to have me removed from the press seats during the Rashid hearing, questioning my accreditation and claiming (unspecified) inaccuracies in the reporting of the case (read in full here). The other two articles flowing from that ten day court hearing stand unchallenged. One exposes a prima facie case of conspiracy to pervert the course of justice by six WYP officers (read the damning details here). Miss Checa-Dover also objected, unsuccessfully, to my presence in the press seats at the hearing of the Kerry Perkins claim, telling opposing counsel that I had a “vendetta” against her. Yet another in an increasingly long line of ludicrous and unsubstantiated submissions. Unsurprisingly, that gained no traction, either. Miss Perkins has also robustly appealed the judgment of HHJ Neil Davey QC, whose decision did not appear to reflect what I heard from the press box. Indeed, one might say that Miss Checa-Dover might well have written it for him.

Dismissing the remaining parts of the Kashif Ahmed claim against the police, which had included negligence, false imprisonment and theft, HHJ Mark Gosnell said: “I fully accept that Mr Ahmed was convinced in his belief that he had been the victim of a witch hunt, but I consider the officers involved merely carried out their jobs to the best of their ability and were not motivated by any ulterior motive in dealing with the claimant.”

West Yorkshire Police then sought to bankrupt the promising young officer, who holds two law degrees and a diploma in policing. Ahmed now works in Bradford as a legal consultant. The genesis of the entire dispute between force and BME officer was over the use of a car parking space behind Millgarth Police Station, in central Leeds, to which DCI Bennett took exception. The same Bennett whom three years earlier had called a junior Asian officer into his office to verbally abuse him, including calling him a c**t, in an attempt to bully the constable into pulling back on an investigation.

That action was later to unravel in the conjoined Operations, Lamp and Redhill, into the ex PC Danny Major miscarriage of justice (read more here). An allegation has been made that Bennett perverted the course of justice in an attempt to protect PC Kevin Liston, arguably one of the worst officers to ever wear a police uniform (read more here) and the key witness against Major.

After the Ahmed and Danny Major ‘investigations’ (the term is used loosely), in which he was senior investigating officer, Bennett was rewarded with promotion to superintendent. I declare a further interest, insofar as I was the on-record complaints advocate for the Major family betwen 2012 and 2015.

A close working colleague of Bennett’s was Chief Superintendent Sarah Brown. In fact, from 2010 to 2011 she was head of WYP’s Professional Standards Department. I had significant dealings with her and found her unreliable and lacking in integrity. Like Bennett, she had also been city commander of Leeds, with its dreadful history of racism, in the earlier part of her career (read more here). Whilst in that role, and under her previous name and rank of Chief Inspector Sarah Sidney, she was at the forefront of a racial discrimination case involving Detective Sergeant Raham Khan that ultimately reached the House of Lords (the senior appellate court in those days) where a damages award to Sgt Khan, upheld in the Court of Appeal, was set aside by three Law Lords. The full judgment can be read here. Put plainly, Khan alleged that Sidney did not promote him on account of his skin colour. A matter she, of course, denied.

In March, 2011 a Bradford minority ethnic, Anwar Gillespie (whom I have met in his home), received substantial damages and an apology from WYP after the intervention of specialist police complaints lawyer, Iain Gould (read more here). Whilst racism was not alleged, Mr Gillespie told me at the time that he felt the colour of his skin was a factor in him being singled out for an unprovoked, unwarranted and brutal attack upon him, outside of his home and in front of his neighbours.

In June 2012, BBC Radio’s File on 4 reported on alleged widespread and serious racism within WYP. The least impressive of the six serving and former police officers interviewed on the programme was Temporary Chief Constable, John Parkinson. He did little, or nothing, to allay concerns. Of the six officers, past and present, interviewed by the BBC, Parkinson came across as the least impressive. Listen to the full broadcast here.

Karma was to visit Ajaz Hussain, who was the force solicitor (later promoted to Legal Services Director) who drove the Raham Khan case all the way to the Lords. In early 2012, there was a reshuffle of the top management in West Yorkshire Police and he lost his job. The roles of Legal Services Director and Force Solicitor (at that time carried out by Mike Percival) both disappeared. A new role was created and Percival was selected to fill it. Hussain then alleged racial discrimination against David Crompton and issued a claim form in the employment tribunal (read more here). The outcome of that claim has never been made public, but it did not pass without controversy and resulted in the suspension of Hussain’s ‘ACPO police friend’, Neil Rhodes, whom at the time was the chief constable of Lincolnshire Police (read more here) and had fallen foul of the duplicity of Fraser Sampson.

In 2013, two police whistleblowers opened up a can of worms into how certain aspects of vital police operations were badly run and lives put at risk by their superior officers within West Yorkshire Police. One of those was a minority ethnic. They were both then subjected to a series of detriments in what appeared to be a concerted campaign to humiliate and smear them. Because of the roles that the officers undertook, for at least parts of their careers, it is unwise to do any more than make reference to the tribunal appeal finding, available in the public domain, which forensically sets out the matters in issue (read more here). It does not make pretty reading for WYP.

In April, 2014 a Bradford woman of African descent, Oluwatoyin Azeez, was viciously assaulted by a police officer who had unlawfully entered her home on the pretext of checking on her lodger. The force went to the most extraordinary, and sustained, lengths to cover up for the perpetrator, who falsely alleged that he had been asaulted by Ms Azeez. That miscreant officer, instead of being drummed out of the force, didn’t even face a misconduct meeting, let alone a criminal court. But, once more, the intervention of solicitor, Iain Gould, was pivotal. At the end of a bitterly fought three year legal battle – again irregardless of the cost to the public purse – Ms Azeez finally received a substantial damages payment and, much more crucially to her, an apology (read the full harrowing story here).

In April 2016, the incumbent chief constable, Dionne Collins, appointed an Asian police constable as the force’s Positive Action Co-Ordinator. The following month Amjad Ditta, a trained firearms officer, was alongside her giving evidence at the Home Affairs Parliamentary Select Committee.

Following publication of the Committee’s Inquiry Report, which called for “urgent and radical” action, Collins acknowledged more needed be done to increase diversity and inclusion among the workforce and said she was determined that the organisation should be more representative of its communities.

“We are currently recruiting police officers for the first time in five years and this gives us an excellent opportunity to increase our workforce not just by people from black and minority ethnic communities, but from all diverse groups, such as people who are lesbian, gay or bisexual.

“The police service has been in the media headlines a lot recently, often for negative reasons. My challenge to people who may be put off by that is, come and find out what West Yorkshire Police is about in 2016. A career with West Yorkshire Police offers genuinely exciting opportunities, but we can only properly serve all our communities by building a truly representative Force and I am determined to do that.”

West Yorkshire Police and Crime Commissioner Mark Burns-Williamson added: “I have worked with the Temporary Chief Constable (Ms Collins) to ensure we are doing all we can to ensure communities are aware of my commitment to equality and diversity within the organisation and in the police service”.

Whilst Collins and Burns-Williamson were shamelessly uttering these shallow words, before MP’s and the television cameras, they were jointly, ludicrously and very cynically, frustrating the civil claim of Oluwatoyin Azeez. In reality, and grounded in hard evidence, what West Yorkshire Police is about is lying and covering-up – and the commitment to equality and diversity is an expensive box-ticking sham.

Eighteen months after his televised appearance in Parliament, PC Ditta disappeared without trace. With both the force press office and the chief constable refusing to answer my questions regarding his whereabouts or his reason for the removal both from his diversity role and other front line duties. He dramatically re-appeared, over two years later, at Bradford Magistrates Court charged with sexual touching. Supported by his staff association, he is expected to plead not guilty at a plea and trial preparation hearing at the city’s Crown Court on 20th January, 2020. He now answers to the name of Amjad Hussain.

In December, 2017 another race and religious discrimination claim against West Yorkshire Police was compromised on the second day of the final hearing. It is assumed that a confidentiality clause was part of the settlement. No others details are available at present, but enquiries are ongoing. Again, this is on the watch of Dionne Collins: On the one hand preaching diversity and inclusion, on the other officers having to go to court as the force continues to discriminate against them.

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At least two other WYP BME officers appeared Tribunal with racial discrimination claims during this period. Both were, regrettably, unrepresented and had their claims dismissed. One was yet another Collins favourite, PC Tayyaba Afzal, having designed the force’s specialist niqab headwear for Muslim female officers. The other was an applicant for a role as a Driver Trainer.

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PC Amjad Ditta (now known as Hussain) and PC Tayyaba Afzal pictured together in Bradford in 2017.

Dionne Collins was approached for comment. She did not even have the courtesy to acknowledge the communication.

In September, 2018, another case involving a BME officer surfaced as an exclusive on this website, later picked up from here by the national press. The officer concerned, C/Supt Tyron Joyce, was also another favourite of the now retired Collins. Joyce was peremptorily removed from his post as Chief Operating Officer at the National Police Air Service, which shares headquarters in Wakefield with West Yorkshire Police, amidst bullying claims. The complaints investigation into the allegations against Joyce was, unsurprisingly given the incompetents that populate the force’s Professional Standards Department, described as ‘a cack-handed debacle’. He also told a junior colleague at the time: “I’ve been in trouble before with PSD. They tried to do my legs, so I have to be careful what I say to staff” (read more here).

Joyce does, however, always have a trump card to play: In 2013, after the present chief constable, John Robins, (at the time an assistant chief constable) had recommended him for the Police National Accreditation Course (PNAC) it was said by Robins to Tyron Joyce; “You are now my tick in the diversity box“. That may explain why, at the end of the disciplinary process, Joyce was handed the plum chief supers role within WYP: Commander – Operational Support based at, and in charge of, the entire Carr Gate Complex on the outskirts of Wakefield.

I will be reporting from the opening of the Umer Saeed hearing. It promises to be an interesting case: A retired and highly decorated WYP officer told me recently that, whatever the outcome of the tribunal proceedings, the force may well be set back at least a decade in terms of BME recruitment as a result of the adverse publicity the case will attract. As a well-connected person of Asian origin, and one who has defeated WYP in court several times, it is taken as read that he knows exactly what he is talking about.

Finally, it should be remembered that the ‘mother’ of all tribunal claims is a West Yorkshire Police case. Angela Vento, a probationer BME officer, took her force to tribunal following serious discrimination against her in the late 1990’s. Her claim form pleaded racial and sexual discrimination, but the former allegation was dismissed at an early stage by the tribunal.

Eventually the Court of Appeal ruled on the matter and the framework for tribunal awards – and the scales of damages accounting for different levels of detriment – is still in use today. Albeit, the figures have been adjusted upwards to reflect inflation. For the legal nerds amongst my readers they may wish to check out the full CoA judgment (read here).

Page last updated at 1320hrs on Friday 15th January, 2020

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Photo credit: Asian Express

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

 

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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