Seaside shenanigans over ‘council corruption’ report

There can be few Borough Councils that have found themselves criticised so roundly and persistently, over the past few years, as Scarborough’s Town Hall incumbents.

Local, regional and national press stories abound over a string of democracy failings, and a BBC Inside Out programme also took them to task over trying to close down a local internet news website.

A well-named ‘Rotten Borough’, as Private Eye regularly describes them.

For journalists, the job of squeezing out information from Scarborough Borough Council (SBC) is one that would test the patience of Job. Press enquiries go largely unheeded, and freedom of information requests are non-compliant, more often than not. Disclosure, if given, can be months late, or provided in such a form as to be worthless.

The latest battle concerns a Council whistle blower scandal that has been doing the rounds for over four years. Despite desperate attempts by senior council officials, aided by a large sum of public money, to keep the lid on corruption allegations, an employment tribunal claim, heard in Hull in July last year, blew it clean off.

Former Council employee, Ben Marriott, succeeded, to a large extent, in a constructive dismissal claim against SBC and received a pay out of £95,000, plus costs. The (now retired) tribunal judge, Humphrey Forrest, described the council ‘investigation’ into Mr Marriott’s whistle blowing allegations as a ‘whitewash’.

Eventually, after much huffing and puffing, and a great deal of pressure applied by the local media, SBC agreed to an external investigation into corruption allegations made by Mr Marriott. To the surprise of most, the police did not investigate what were, taken at their face, serious allegations.

Instead, the Council instructed Mazars, a private company specialising in audit, accountancy, tax and consulting services, to undertake a ‘review’. The company has an existing commercial relationship with the Council as their financial auditors.

Mazars are better known as sponsors of Yorkshire’s county cricket team: But, most definitely, not as criminal investigators.

Mazars partner, Ian Wrightson (left), pictured at Headingley Stadium with Yorkshire County Cricket Club chief executive, Mark Arthur.       Picture credit: Mazars

Unusually, the scope of the ‘review’ was not made public and it was clear, from a leaked email sent by SBC’s head of legal services to Councillors in December, 2016, that the Town Hall was still in almost complete denial over the court’s findings.

A false claim was also made in the same email concerning a confidentiality agreement (NDA) allegedly sought by Mr Marriott: No such clause was ever considered by him. As a whistle blower it would have been unenforceable, in any event.

A local newspaper reported, after the remedy hearing in December, 2016, that the total cost of the Marriott claim, including legal fees and ancillary expenses, would be in the order of £250,000.

Mr Marriott also told the media that he was still waiting for an apology from SBC: “Not once has anyone said sorry to me. All I did was to raise some potentially serious issues with them and I was forced to leave my job and fight through the courts.

The Mazars review was delivered to the Council in June, 2017 and was quickly followed, in the same month, by a freedom of information (FOI) request seeking disclosure of the report; its terms of reference; the budgeted cost and the actual cost [1].

The review was months overdue: The Council Leader, Derek Bastiman, was quoted in the local press in December, 2016 as saying: ‘The external investigation we have instigated with our external auditors, Mazars, the investigation’s findings are expected shortly’.

As expected, the FOI request has developed into the usual blood out of a stone exercise. The finalisation of the request, on the very last day stipulated by law, produced no information at all. The Council relied on a section 22 exemption under the Freedom of Information Act (the Act). The officer dealing with the request did not put his (or her) name to it.

In layman’s terms, a section 22 exemption means the public authority (SBC) does not have to disclose the requested information, because they intend to publish it at a later date. The main problem with the Council’s response is that they did not say how, or when, that intention was made.

A challenge against the SBC decision (called an internal review request under the Act) was submitted shortly afterwards. It was an eleven point challenge, carefully set out and annotated with the relevant case law and recommended reading.

The key points of complaint were:

– By reference to local/regional media, social media and, more crucially,
council minutes, there appeared to be no settled intention to publish any,
or all, of the requested information. To rely on a s22 exemption, a
refusal to disclose is required to be accompanied by evidence.

– No timeframe is given for publication, other than ‘in the near future’.
Given the Council’s routine (and defensive) approach to disclosure that
could, readily, be interpreted months, or years. Previous
experiences with the Council concerning information requests, and press
enquiries, are relevant in this regard (answered very late or not at all).

– It is accepted that a definite date is not required to be given (or
indeed possible to give). However, the Information Commissioner takes the view that timing is a key factor when deciding whether withholding the information is “reasonable in all the circumstances”.

It was also contended that the refusal to disclose the information engaged the requester’s Article 10 convention rights:

The Grand Chamber of the European Court of Human Rights in Magyar 
Helsinki Bizottság v Hungary [18030/11] stipulated four ‘threshold
criteria’ to better define the circumstances under which a denial of
access to information constitutes an interference (to a requester’s
Article 10 rights) in a given case:

The purpose of the information requested: contribution to a public
debate.

The nature of the information sought: public interest nature

The role of the applicant: social watchdogs and  the like.

Whether the information is ready and available to the public
authorities.

In the Mazars request there has already been considerable public debate:
(a) the Council has conceded the public interest argument (b) the
requester is an NUJ accredited journalist (c) it is known  (and conceded
by the Council) that all of the requested information is ready and
available.

The Council’s refusal to disclose the information, therefore, clearly
engages the requester’s Article 10 rights, by reference to Magyar.

The Council were urged to deal with the internal review request ‘promptly’.

In the event, it appears that the Council would not have dealt with the internal review at all, but for a threat of judicial review proceedings made on 21st August, 2017. After the deadline for response to the internal review request had passed.

Briefly, the Council were told: ‘The refusal to disclose the requested information arguably constitutes a breach of Article 10 convention rights.  Further, the refusal to undertake an internal review in accordance with section 45 of the Act and the Information Commissioner’s Guidance would tend to aggravate such a breach’.

This had the desired effect as a finalisation to the review request was received the following day. Again, it was anonymised.

The main thrust of the Council’s response was that they continued to rely on the section 22 exemption in order not to disclose three of the four parts of the information request.

They did, however, disclose that the budgeted cost of the Mazars review was £14,000. Which, at their rate of charging, buys you very little. The oily smell of ‘whitewash’ has again reached the nostrils.

Six of the eleven points of complaint were not addressed at all, including the breach of convention rights contention, but there were some interesting revelations amongst the narrative provided by the Council:

– The scope of the review is set out as part of the report itself.

– The intention to publish the report derives from the decision of a cross party panel of elected Members, who met privately to consider the report and next steps. They unanimously decided that the report should be disclosed.
– The Council say that there is already an amount of incomplete and incorrect information circulating in the public domain about this matter, releasing the scope in isolation from the remainder of the report would do nothing to assist public understanding, and would result in questions being raised that could be addressed by the content of the complete report.

– The actual cost of the investigation is not known at this time because the Council has not received a final bill.

– As stated in the Council’s initial response, there is clearly a public interest in this information being disclosed into the public domain. There is also a public interest in the information being published in a manner that aids understanding.

– The reliance on section 22 of the FOIA is nothing to do with political inconvenience as stated in the request for review. In fact quite the contrary is true, in that it would be more politically convenient for the information to be disclosed as soon as possible.

– There is a strong public interest in the Council operating in a lawful manner – to do otherwise would put the Council at risk of legal challenge. One relevant aspect of the requirement to operate lawfully is to ensure that the Council complies with its duty of care towards staff, and the common law duty of mutual trust and confidence. In this respect the Council must ensure that it meets such duties towards those staff who have been involved in and may be affected by the matter prior to releasing the report into the public domain.

– Another aspect of acting lawfully is that the Council has entered into a contractual agreement with the external auditor for the provision of an independent review. As part of that contractual agreement, the external auditor has stipulated that their written permission must be obtained prior to the report being disclosed more widely. To publish the report without obtaining written permission would likely be a breach of contract and put the Council and the public purse at risk, and it is entirely
reasonable from a public interest perspective to allow the Council opportunity to comply with this requirement.

As ever with SBC, when information is eventually prised from their grasp there are more questions than answers:

From the vague terminology it appeared that no tightly drawn terms of reference were set for the review. ‘Scope’ suggests a rather more loose narrative.

The public now know that a small group of councillors has met, on an unspecified date and without announcement, before or after, and decided to publish the Mazars report.

Without any preamble, it was published on 30th August, 2017 on the Council’s website [2]. Members received an email after the event. The Council leader made this accompanying announcement:

I have instructed officers to publish a copy of the Mazars report with the unanimous support of the cross party panel of councillors to whom the report was delivered”,

Unfortunately, Mazars was unwilling to grant the council permission to disclose the report publicly, however I have taken the decision that there is a significant overriding public interest in doing so. Indeed it has always been my intention that this report would be publicly available.”

The working hypothesis is that the furore over the freedom of information request, and the accompanying threat of legal action, forced the Council’s hand.

As suspected, there were no terms of reference, and, incredibly, Mazars were allowed to determine their own scope for the review.

The report is unattributed; no Mazars employee has put his, or her, name to it. The review simply adds gloss to the original whitewash applied by the Council to Mr Marriott’s allegations.

The report notes that a meeting between senior Council officials and senior North Yorkshire Police (NYP) officers took place in November, 2016. Based on information provided to them, NYP decided not to investigate the allegations.

The same police force that sent five officers, within minutes, to the Town Hall to prevent a section of the electorate from expressing their views from the public gallery at a recent Council ‘no confidence’ meeting which had devolved into a democracy shambles [3].

The Council leader boldly claims: “The report followed an independent and comprehensive investigation and I fully accept the outcome of this process”.

It is unclear as to how Cllr Bastiman has arrived at the conclusion that it was ‘comprehensive’. To say it was ‘independent’ is also a misnomer.

Mr Marriott is, understandably, upset at the outcome: “Like the judge said at the Tribunal, a complete ‘white wash’. It really is embarrassing to read, the total lack of professional standards and lack of respect for the whole country and its people”.

He added: “In court, the judge stated that Scarborough Borough Council had not done any investigations into my allegations for fear of upsetting people”.

More than three months after delivery of the report, the Council say Mazars haven’t sent in a bill for the work. Many people would take the view that, if an invoice does eventually materialise, it should be returned unpaid.

The Mazars report does not feature on the Agenda for the full Council meeting scheduled for Monday 4th September, 2017 at 2pm. A briefing of all Members on the Mazars report was scheduled for 11am on that day. It is unclear whether that will now proceed.

The complaint to the Information Commissioner proceeds – and appropriate action will be taken against the Council concerning any finding of Article 10 breach.

A second freedom of information request was made to the Council on 31st August, 2017 seeking disclosure of materials that will give context to the Mazars report and decisions taken within and around it [4].

Scarborough Borough Council’s press office has declined to comment.

 

 

Page last updated Friday 1st September, 2017 at 1930hrs

[1] Neil Wilby: What Do They Know FOIA request to Scarborough Borough Council 23rd June, 2017

[2] Mazars: Review of Scarborough Borough Council’s investigation of whistleblowing allegations received in October 2014

[3] Scarborough News: ‘Police called to no confidence meeting after public gallery clapped’ 26th June, 2017

[4] Neil Wilby: What Do They Know FOIA request to Scarborough Borough Council 31st August, 2017

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

‘Complete capitulation’ follows the fall of Rome

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

maxresdefault

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

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

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

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

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

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

Screen Shot 2016-02-12 at 11.16.55

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

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

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

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

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

tim_madgwick_worried_portrait

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

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

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

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

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

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

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

CachedImage.axd

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

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

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

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

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

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

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

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

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

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

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

JS70328136

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

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

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

police.jpg-pwrt3

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

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

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

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

nigel-ward-300x3001

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

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

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

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

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

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

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

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

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

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

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

Screen Shot 2016-02-14 at 17.45.51

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

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

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

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

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

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

Screen Shot 2016-02-07 at 12.34.05

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

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

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

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

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

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

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

_________________________________________________________________

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

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

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