‘Case closed’ says regulator

In December, 2020 it was reported elsewhere on this website that a serving police officer had made a conduct complaint about a well-known Leeds barrister (read here).

Umer Saeed, a sergeant with the West Yorkshire force, had sent in the prescribed Bar Standards Board form in April, 2020 setting out allegations against Olivia Checa-Dover, whom frequently acts as counsel for the same police force in both civil and employment claims – and also represents WYP, and other forces, in misconduct hearings.

She also sits as a deputy district judge and as a Recorder (part time circuit judge).

The BSB complaint arose from a hotly disputed conversation between Sgt Saeed’s barrister, Adam Willoughby, and Miss Checa-Dover at Leeds Employment Tribunal in January, 2020. The officer is claiming racial and religious discrimination against his chief constable.

The extraordinary background, and the ultimate ramifications of that pre-hearing exchange between counsel, is dealt with in another lengthy, highly forensic piece on this website, published yesterday (click here). It makes for quite astonishing reading.

In summary, both barristers had to recuse themselves from the case in March, 2020 and faced searching witness box cross-examination, and questions from the judge, at a full day Tribunal hearing in December, 2020.

The matter in issue was an allegation that Miss Checa-Dover was intending to seek an adverse credibility finding against Sgt Saeed whom, she said to Mr Willoughby, ‘had lied in his witness evidence’. Such a judicial finding would have a serious impact on his police career and make him ‘non-operational’ by way of removal from the ‘evidential chain’.

Dijen Basu QC who now represents Sgt Saeed told the Tribunal, in written submissions: ‘This was not the sort of case in which it could credibly be said that there was a serious chance of Sgt Saeed (or anyone else) being found [by the Tribunal] to be a liar – especially given that Miss Checa-Dover now accepts that she, actually, had no intention of making any such suggestion’.

At the December hearing, the existence of Sgt Saeed’s BSB complaint was revealed, publicly, for the first time. But there was scant detail until the publication of the judgment arising from those proceedings on 16th March, 2021 (it was handed down to the parties to the claim around two weeks earlier).

It transpires that the regulator had actually closed the complaint before the hearing. The BSB had written to Miss Checa-Dover in October, 2020 to inform her. She said in her evidence that the same letter was the first she knew of the complaint.

The vital part of Sgt Saeed’s report to the BSB was also set out in that same judgment and it, regrettably, revealed its futility. It was doomed from the outset.

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

Without prejudice discussions between counsel are legally privileged and, as such, not actionable. It is a point upon which Sgt Saeed might well have been wise to seek appropriate advice before lodging the complaint.

The fact that what he reported to the BSB ran counter to what Mr Willoughby says he told Sgt Saeed about those same discussions was an embarrassing moment for the barrister at the December, 2020 Tribunal hearing. Mr Willoughby’s account was that, in his view, the without prejudice element of his discussion with fellow counsel had ended.

Sgt Saeed, surprisingly, did not give evidence in his own cause at that same hearing. He, also, did not respond to enquiries about the status of the complaint shortly after the December, 2020 hearing.

Having heard all the oral evidence from the virtual press seats, the suspicion is that it was the police officer who was mistaken: Ardent in his belief that Miss Checa-Dover was setting out to damage his police career, and very probably angry at what he must have perceived to be a serious slur against him, his complaint has the appearance of not having sufficient care taken over it.

Even more surprisingly, Miss Checa-Dover did not exercise her right to reply when sent a draft of the article ‘Part-time judge faces Bar Standards complaint‘. At that point she knew the case had been closed by her professional regulator almost two months earlier.

Nevertheless, the record has now been put straight in what, on any independent view, a most unfortunate farrago, in which none of the protagonists emerge with credit. The fact that it was allowed to run all the way to a public hearing, with all the attendant waste of taxpayer funds and ‘airing of dirty washing’, simply beggars belief.

Page last updated on Saturday 20th March, 2021 at 0635hrs

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.

Picture credit: KBW Chambers

© Neil Wilby 2015-2021. 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.

Much ado about nothing?

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

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

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

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

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

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

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

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

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

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

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

The Claimant’s case

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

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

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

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

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

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

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

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

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

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

The evidence of Adam Willoughby

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The evidence of Olivia Checa-Dover

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The evidence of Victoria Clegg

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

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

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

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

The judge’s findings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written submissions by the parties post-hearing

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

  1. The substantive submissions on behalf of Sergeant Saeed:

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

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

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

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

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

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

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

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

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

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

In summary, this amounted to:-

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

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

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

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

2. The substantive submissions on behalf of West Yorkshire Police

‘A. Without prejudice communications

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

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

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

B. Unambiguous impropriety

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Vicarious liability of the Chief Constable

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions by the judge

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

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

Was that conversation part of a without prejudice conversation?

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

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

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

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

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

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

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

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

Was the conversation genuinely aimed at settlement?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judicial proceedings immunity

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

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

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

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

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

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

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

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

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

Postcript

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

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

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

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

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

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.

Photo credit: 

© Neil Wilby 2015-2021. 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.

Part-time judge faces Bar Standards complaint

At a remote case management hearing on Monday 14th December, 2020, an Employment Tribunal judge in Leeds was told that a serving West Yorkshire Police officer, Sergeant Umer Saeed has lodged a formal complaint against a well known Leeds barrister, Olivia Checa-Dover (writes Neil Wilby).

It concerns a disputed account of a conversation between Sgt Saeed’s barrister at the time, Adam Willoughby, and Miss Checa-Dover, that took place on 17th January, 2019. She was representing WYP in those same Tribunal proceedings in which Sgt Saeed is claiming racial and religious discrimination against his employer (read more here).

The hearing of the claim was listed to open on 16th January, 2019 but that session was, in the event, set aside as a reading day and, moreover, the Tribunal panel was aware that the parties were in negotiations with a view to settling the claim.

It was during those discussions that the subject conversation took place, on the following day.

It is said by Mr Willoughby that a coercive threat to end Sgt Saeed’s career as an operational police officer was made by Miss Checa-Dover. A matter she robustly denies, having an entirely different recollection of what took place between them.

There were no independent witnesses to the conversation, although Mr Willoughby relies upon detailed contemporaneous notes made in his ‘blue book’.

The evidential aspects of the dispute between counsel were fully ventilated in the hearing earlier this week as both barristers, having recused themselves from the claim, were subjected to lengthy and highly forensic cross-examination.

Solicitor Victoria Clegg also gave evidence for the police, which was very largely procedural. She is not the subject of complaint by her WYP colleague, Sgt Saeed. Essentially, Mrs Cleg confirmed that Miss Checa-Dover did not have instructions either from her, or the chief constable, to say the things she allegedly put to Mr Willoughby.

Although no reporting restrictions are in place, a full account of those proceedings is being delayed until Judge Knowles has made his determination on the present matters in issue. Those include whether to consolidate two further claims made by Sgt Saeed, concerning other detriments arising by way of the conduct of the defence of the claim by WYP, namely victimisation and disability discrimination, together with the original claim.

The hearing over-ran and it was not possible to hear final submissions from newly appointed counsel Dijen Basu QC (for Sgt Saeed) and David Jones (for WYP). The parties, and the judge, decided, after a short discussion, that those remaining matters could be satisfactorily dealt with on paper. It is expected that judgment will be handed down towards the end of January, 2021.

What emerged in evidence from Mr Willoughby and Miss Checa-Dover, some of it highly controversial, to say the least, will be reported alongside the judge’s findings, in what is an exceptional and sensitive case.

The status of Sgt Saeed’s complaint to the Bar Standards Board, made in March 2019, was not discussed in the hearing. It is assumed that any actions by the BSB have been stayed, pending the fact finding of Judge Knowles. They do not comment on individual cases and Sgt Saeed is reluctant to give any further details.

Umer Saeed is 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 and Urdu. He joined the police service in June, 1999, spending most of his career in specialist teams, and has a BSc degree in Business Administration and Management. He is presently negotiating with WYP over study for a much coveted Master In Business Administration (MBA) qualification.

Adam Willoughby is the Head of Sports Law and Deputy Head of Employment Law at Broadway House Chambers in Leeds. He is described as “an impressive advocate” with “exceptional analytical ability”.

Olivia Checa-Dover is a police law specialist with KBW Chambers, much favoured by West Yorkshire Police. It is said that “she has an exceptionally sharp mind and an eye for detail“. She also sits as a legally qualified chair in police disciplinary hearings, was appointed as a Recorder (part-time judge) in April, 2019 and also sits as a Deputy District Judge.

She represents WYP in another highly controversial, fiercely contested civil claim brought by Bradford GP, Dr Abdul Rashid, in which the force lost out at the High Court, on appeal (read more here). Mr Justice Lavender found that Dr Rashid had been unlawfully arrested in March, 2012, overturning a highly criticised County Court judgment of Mr Recorder Ben Nolan QC.

A hearing, to assess the amount of damages Dr Rashid will be paid, is expected to be listed for July, 2021.

The conduct of the police has been the subject of fierce criticism throughout those proceedings and the events that preceded them.

Miss Checa-Dover deleted her Twitter social media account shortly after publication of this article. Her chambers, KBW, blocked the author without any interaction beyond a single, innocuous tweet posted almost three months ago (see here). Matters, alongside some extraordinary and unpleasant conduct by Chambers Head, David Brooke QC, that will be the subject of a further article after the publication of the judgment featured in the present piece. He also, surprisingly in the light of that conduct, sits as a part-time judge.

This is a developing news story and will be updated. Follow Neil Wilby on Twitter here, and Neil Wilby Media on Facebook here.

Page last updated: Monday 1st March, 2021 at 1135 hours

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.

Picture credit:

© 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 Media, with appropriate and specific direction to the original content.

The Road to Perdition

That a police force has set out to completely and utterly ruin a man, mentally, physically, financially, over the the past eight years is not in doubt. The story is well-rehearsed elsewhere on this website.

Neither is the fact that a law enforcement agency has not only been prepared to commit serious criminal acts, but coerce other policing agencies and public bodies to feverishly cover them up (read here).

That conspiracy against Dr Abdul Rashid, a well respected Bradford general practitioner, both in terms of the smear campaign against him, the police criminality and ‘cover-up’, for which the most compelling evidence is available, appears to embrace the local, regional and national media. The once-respected Telegraph and Argus has provided scant, one-sided coverage of the case and give the appearance of being at the beck and call of West Yorkshire Police.

The T&A gleefully reported the outcome of a ten day hearing of a bitterly fought civil claim hearing in Bradford County Court, directly opposite the newspaper’s headquarters. Their reporter, absent from the entire proceedings beforehand, turned up for the 45 minute handing down of the judgment and then did a hatchet job on Dr Rashid. Grounded in error-strewn findings that, put shortly, did not reflect the evidence or legal argument heard in court. It was appealed and the verdict of Mr Recorder Nolan QC duly quashed (read here).

I was the only reporter in court throughout the trial and the police made representations to the judge and tried to have me removed. An enterprise that failed miserably, as I hold the necessary press credentials (read more here).

The fact that an appeal was in train, the consequent one day public hearing of the appeal or the handing down of the judgment in Dr Rashid’s favour was never reported in the press, or on the heavily pro-police broadcast media in the region. Matters of not only huge reader (and viewer) interest in their locality, but of massive public concern in terms of the perenially oppressive, objectionable behaviour of the police and the conduct of the case by a judge whose attitude towards the claimant’s legal team was highly questionable throughout the trial. Amply borne out in the trial transcript (read more here).

At a case management hearing earlier today (16th October, 2021) at the Leeds District Registry of the High Court, before the North East Circuit’s most senior judge, Mr Justice Lavender, the outfall from Dr Rashid’s success at appeal, where it was determined that his arrest by WYP in 2012 was unlawful, was picked over and Directions given to both legal teams.

The successful claimant has been represented, throughout the eight year battle with the police, by Ian Pennock of Park Lane Plowden Chambers in Leeds. Olivia Checa-Dover of KBW in Leeds advocates for the police.

The judge, firstly, and as a High Court arbiter, dealt with matters consequential to the appeal:

The costs of the appeal were awarded to Dr Rashid. The legal bills of both parties are estimated to be around £125,000, for which the taxpayer foots the bill. A payment on account of £35,000 has been ordered by the judge, pending agreement or assessment of costs.

Folllowing the quashing of Mr Recorder Nolan’s Order, and a substitute finding by Mr Justice Lavender that the arrest was unlawful, the senior judge clarified that damages are to be assessed for wrongful arrest, at a hearing that will take place in the Autumn of next year, back at Bradford County Court.

The issue of whether Mr Recorder Nolan QC should preside over the causation and quantum hearing was dealt with fairly shortly by the judge. In his written submissions, Mr Pennock had advanced the view: “From the perspective of any reasonable person objectively assessing incorrect assertions by the police [in respect of their arguments in favour of Ben Nolan QC continuing to hear the claim], it would only further raise an index of suspicion with regards to the police’s clear and strongly expressed desire for the Recorder to be, effectively, reserved to this matter, particularly when the same is not necessary. Dr Rashid makes clear this is in relation to the ‘appearance’ of justice being seen to be done and the police not being able to select the judge they consider to be most favourable to them”. The nub of Miss Checa-Dover’s argument was that Recorder Nolan is familiar with the case and should carry on with it.

Mr Justice Lavender ruled that he was not minded to adopt the argument of counsel for either party. He will alert the Designated Civil Judge for Leeds and Bradford, HHJ Mark Gosnell, that listing the matter to be heard by Mr Recorder Nolan QC would be followed by an application, from counsel for Dr Rashid, in terms that the part-time judge recuses himself.

The judge also observed that Ben Nolan’s present contract as a Recorder will have expired by then, and there is no way of knowing whether that arrangement will be renewed. So, the prospective choice of that particular judge may not even arise.

The costs of last September’s ten day liability hearing are reserved. The reasons given by the judge are that Part 36 offers (read here) are already in place on behalf of both sides. If an Order was made now, it would, he says, preclude any further Order by a judge in the County Court in the future. ‘Consequences of those [part 36 offers] will fall to be considered at the end of the quantum trial’.

For example, if the damages did not exceed the offer made by West Yorkshire Police, confirmed in the hearing as £10,000, then Dr Rashid would be left with the costs. If the damages are set at, or exceed, £10,001, then the police pay the costs. The claim is for £5 million and Mr Pennock described the police’s Part 36 offer, not unoriginally, as ‘paltry’. He had argued that costs should follow the event, in the normal course of civil proceedings, but was overruled on that point. Miss Checa-Dover’s submission was that the claim by Dr Rashid is ‘not yet fully determined and there is a real possibility of impact on costs’. A clear signal that WYP will contest this claim to its bitter end.

As the judge himself noted wryly, by a trick of technical wizardry he was able to mutate from a High Court judge sitting in Leeds, to a district or circuit judge in Bradford County Court, so that he was able to give Directions to the parties for the future conduct of the case in that jurisdiction.

Timetabling of the route to the second trial, to determine causation and the amount of damages (quantum) that the police will pay Dr Rashid, was set out: A case management conference is listed for 28th May, 2021 and a further renewal, which may, in effect, become a pre-trial review to be listed on, or after 2nd July.

After hearing argument from both counsel, the judge rejected Miss Checa-Dover’s oral application for what was a thinly disguised bid for a wasted costs order. Mr Justice Lavender ruled that, in respect of today’s hearing, ‘costs were in the case’. That is to say, the ‘losing party’ at the outcome of the final hearing next year will bear the costs of both sides.

As Dr Rashid pointed out after the hearing, he is already ‘the winner’ in terms of having the 2012 arrest at his home, in a dawn raid involving 16 officers, deemed unlawful. That was a long-awaited vindication of a postion he adopted and maintained in the long years since that awful, deeply traumatic day.

Sir Nicholas Lavender QC is a former Chair of the Bar Council. He was called to the Bar in 1989 and took Silk (appointed as Queen’s Counsel) in 2008. He was appointed as a Recorder in 2010, a Deputy High Court Judge in 2013 and as a High Court Judge in 2016, assigned to the Queen’s Bench Division. Highly respected, he is currently a Presiding Judge of the North Eastern Circuit.

By the time the Rashid claim is finally settled, he will probably be a Lord Justice of Appeal. Following the same path through Leeds as one of the best judges ever to sit in that court, Lord Justice (Sir Peter) Coulson.

Two other victims of the same class of police vendetta also feature elsewhere on this website: John Elam (read more here) and Ralph Christie (read here).

Page last updated: Sunday 18th October, 2020 at 1855 hours

Photo credits: Cambridge University

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 2015-2020. 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 Media, with appropriate and specific direction to the original content.

An affront to open justice

Last Friday I reported on an appeal judgment handed down in the Leeds Registry of the High Court of Justice (read more here). It was a civil claim in which the Chief Constable of West Yorkshire Police and his legal team were defeated by a Bradford GP and medico-legal practitioner, Dr Abdul Rashid.

It was an expensive loss, in terms of reputation of the police, public confidence in them, as well as the consequential costs and, as yet unquantified, damages. Four chief officers, Norman Bettison, Mark Gilmore, Dionne Collins and John Robins have overseen this debacle from its genesis in October, 2011 and an unlawful dawn arrest five months later, involving no less than sixteen officers. The former two chiefs would have known very little about the case. Both left the force under dark clouds. The latter two deeply involved because of the huge sums of money at stake, potentially topping £5 million. Dee Collins, as she likes to be known, authorised a ‘Part 36’ offer of just £10,000 plus costs to settle the claim.

Robins has been on the scene throughout as divisional commander of the arresting officer and his cohort; temporary deputy, deputy and then chief constable. He has a great deal to answer for:

Criminal offences have been committed by officers, on the clearest of evidence (read more here), and the level of misconduct and gross misconduct by a number of other officers in the force, not least to perpetuate a grotesque ‘cover-up’ has been simply breathtaking. Pursuit of satellite interests, instinctive lying, data breaches, police computer misuse, concealing or destroying documents, suppressing witness evidence, grotesque smearing of a hard-working professional man and the pursuit of a zealous, persistent, long-running vendetta by the police, designed not only to ruin him but, principally, to defeat the civil claim.

Selective memory, of course, comes as standard with WYP in court proceedings and their main witness answered no less than 13 times in terms of ‘I don’t remember’ or ‘I don’t recall’ when questioned by defence counsel about key events or missing documents. The same officer, Sergeant Mark Taylor (as he was then) was present at the arrest and has been involved continuously in the case as exhibits and disclosure officer ever since. He should know the case backwards and have logged and preserved every single piece of evidence. That was his principal duty. Some of the key documents he couldn’t produce were his own notebooks and emails. Taylor is still a serving inspector in Bradford CID.

With, it must be said, the aid of a judge whose verdict has now been quite properly overturned, but not quite in the terms it should have been (read more here), the police very nearly got away with it. Rounding off a bad week for Mr Recorder Nolan QC as he was at the centre of a complaint outcome upon which I exclusively reported here. The complaint was not upheld, but is presently the subject of appeal to the Judicial Conduct Investigation Office.

The standing of the legal team deployed by the chief constable, in this most unpleasant of debacles, is also diminished and their own conduct, it can be argued, might well be the subject of a regulatory investigation, at the very least, in order to maintain public confidence in the civil justice system. Litigation is not for snowflakes, but what has been allowed to pass here as professional conduct is seriously troubling.

The instructing solicitor, Alison Walker, Deputy Head of Legal Services for West Yorkshire Police, is said to be already under investigation over other civil proceedings, but neither her own force or the force to whom, I am told, the matter has been referred (Cleveland) will confirm or deny. Mrs Walker will, doubtless, deny any allegations of impropriety in that particular case, and no imputation, beyond the fact that an investigation may be taking place, is made, but she has a much greater difficulty in the Rashid claim as I (and others) have witnessed it, recorded it in my notebook, reported upon it assiduously and have the complete trial transcript (running to 1166 pages) and trial bundle (electronic version of 12 lever arch volumes) to back up those scribblings. Not one word of which has been challenged by the police, or anyone else.

It is also not clear whether it was on instructions from her client, or of her own motion, but Olivia Checa-Dover of counsel sought to have me removed from the substantive hearing of the claim brought by Dr Rashid on the beginning of the fourth day (of ten). At a hearing in the same court building seven weeks later, she objected to my presence in the press box during another civil claim against West Yorkshire Police brought by a former officer, Kerry Perkins (read more here). The latter case cost the taxpayer over £80,000 in costs shortfall; the Rashid case could well cost the same taxpayers over £1 million in costs and damages. That is on Olivia’s opinion and advice. Seemingly, she, and the police, would much rather these matters, of huge public interest, were not reported and the foundation principle of open justice defeated. Not to mention the routine WYP disclosure failings, questionable witness box testimony, and the ‘cover-ups’ referred to earlier in this piece.

That, from my position in the press seats, diminishes her standing as both counsel and an officer of the court – and those instructing her, including other police forces such as Durham Constabulary (read more here) and Staffordshire Police to name but two, might, in future, consider anxiously whether she is an appropriate guardian of public funds. Or able to contain her innate bullishness.

Nothwithstanding those criticisms, I am an admirer of Miss Checa-Dover’s undoubted talent as a courtroom advocate, her ability to charm the bench and enviable case preparation skills.

As a footnote I would add that, having been adjacent to the Perkins case for over two years, from its very first public hearing in Wakefield County Court, if Kerry had not been worn down mentally, physically and financially by her former employers during the legal process, and forced to withdraw her own appeal to the High Court, she would also have ultimately succeeded in her data protection, privacy claim. A view shared by her legal team, including Sarah Hemingway of counsel, which would have been bolstered by the addition of the formidable Stephen Cragg QC to the legal team at appeal. That would have added around £175,000 to the West Yorkshire taxpayer bill, by way of costs and damages.

The spectacular oversight failings in this case of such as West Yorkshire’s hapless, hopeless Police and Crime Commissioner, Mark Burns-Williamson and his slippery chief executive and string-puller, Fraser Sampson, will be the subject of a separate article. The Independent Office for Police Conduct and Crown Prosecution Service also feature strongly in the facilitation of this grotesque debacle.

The IOPC, in particular, can expect to be put to the sword. They concealed a former WYP detective constable, Mark Lunn, in their Wakefield office for over three years and refuse to confirm that a full review of every case to which he was a party. He just happened to be the arresting officer of Dr Rashid. Even the most basic of checks by the police watchdog would have raised sufficient concerns for him not to be employed in an organisation where flawless integrity should be an absolute necessity.

Lunn is described by a former senior IOPC colleague as “lazy and corrupt, spending more time pursuing his own business interests (selling free range eggs) than his job here”. Given what is written extensively, elsewhere on this website (read here), about the wayward and dishonest Lunn, that observation has the necessary ring of truth.

Page last updated: Monday 28th September, 2020 at 1535 hours

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 2015-2020. 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 Media, with appropriate and specific direction to the original content.

Doctor finds the right remedy

A bitter eight year battle against West Yorkshire Police has ended in victory for a Bradford doctor and medico-legal practitioner, Abdul Rashid

In a judgment handed down by Mr Justice Lavender in Leeds High Court on Friday 25th September, 2020 it was held that the police had unlawfully arrested Dr Rashid at his home in March, 2012 in a dawn raid involving 16 officers.

He was suspected of involvement of what became known as ‘crash for cash’ insurance claims. No allegation of that nature, or indeed any other criminal allegation, was ever put to him in over 30 hours of police station interviews. The questioning by detectives was described as ‘immature and largely pointless’.

A civil claim followed, alleging wrongful arrest, trespass and false imprisonment and was eventually heard at Bradford Law Courts in September, 2019. Dr Rashid was represented by Ian Pennock of counsel and local solicitor, Simon Blakeley. Counsel for WYP, Olivia Checa-Dover and Daniel Penman were instructed by Alison Walker, Deputy Head of Legal Services within the police force (full day by day trial report can be read here).

After a bitterly fought, ten day liability hearing, the claim was peremptorily dismissed by Mr Recorder Nolan QC, who found that the police had both reasonable grounds to arrest Dr Rashid and there was a necessity to do so, rather than ask him to attend for voluntary interview. The judge awarded costs of around £130,000 against Dr Rashid following the hand down of the judgment.

At the time, both the doctor and his legal team were perplexed over the judge’s findings and felt strongly it did not reflect either the evidence or legal argument (read more here). It is also true to say that they were dismayed at what had been allowed to pass for disclosure, wherein it seemed that the materials had been weeded by the police to take out almost every document that would either assist the claimant or expose what was plainly a ‘cover-up’ over a ‘bad apple’ officer who effected the arrest (read here). 

The demeanour of Ben Nolan QC, throughout the trial, was also a cause for concern and may yet be the subject of a complaint to the Judicial Complaints Investigation Office.

An appeal for permission to appeal was lodged with the High Court the following month and was granted ‘on the papers’ in December, 2019 by the same judge who, ultimately, gave judgment.

Dr Rashid’s appeal focused on the adverse findings by the judge in the trial on these central issues:

 – Whether the arresting officer, Detective Constable Mark Lunn, and his fellow officers (a) honestly, and (b) reasonably believed:

(i) that there were reasonable grounds for suspecting that an offence had been committed by the Claimant; and

(ii) that it was necessary to arrest the Claimant to allow the prompt and effective investigation of the offence

 – Whether the search warrants had been obtained lawfully and by due process.

 – Whether the Claimant would have been lawfully arrested by another officer, if he had not been arrested by DC Lunn. This was referred to as the “Lumba Parker issue” at trial, by reference to Parker v Chief Constable of Essex Police [2019] 1 W.L.R. 2238. Parker being better known as the former television celebrity, Michael Barrymore. The 2011 Supreme Court case of Walumba Lumba versus the Home Secretary  is now an oft-cited legal authority on the tort of false imprisonment (read more here).

 – Whether the ex turpi causa doctrine applied. Otherwise known as the defence of illegality, deployed by law enforcement agencies when an arrest has been otherwise deemed as unlawful.

The thrust of the appeal was, obviously, that the primary conclusion of the Recorder, of the arrest being lawful, was wrong. The adequacy of the Recorder’s reasoning was also challenged.

The full appeal hearing took place remotely, via Skype Business, in early May, 2020. In spite of one or two minor technical hitches it was comfortably completed within the estimated time of one day (read report here).

The delay in handing down the judgment is believed to be, at least in part, due to Mr Justice Lavender’s wider responsibilities as a Presiding Judge of the North Eastern Circuit and the heavy administrative burden that comes with such a role. Especially in the time of a national emergency, such as CoVID-19.

The key points from the the judgment, can be summarised thus:

Reasonable grounds for arrest: The judge upheld Recorder Nolan’s finding that the arresting officer, and others in the group of officers involved in the planning of the operation, did have reasonable suspicion of Dr Rashid’s involvement in the crash for cash conspiracy, although the judge noted that the bar is set low for such suspicion.

Necessity for arrest: The judge found that the police not exploring the option of voluntary interview was fatal to their case. The use of the power of arrest must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less obtrusive means. Here the bar is set quite high. In Dr Rashid’s case the police did not even consider an alternative to arrest. The justification for that arrest, prior to it being effected, was to seize his mobile phone, even though the officers agreed that the suspect, being an otherwise respectable, professional man would co-operate. In the event, the mobile phone was picked up by officers from his bedside table. He was in his night attire at that time, a situation reasonable foreseeable by the police given the early hour.

It was also held that the arresting officer is required to record in his pocket book or by other methods used for recording information: (i) the nature and circumstances of the offence leading to the arrest (ii)  the reason or reasons why arrest was necessary (iii) the giving of the caution (iii) anything said by the person at the time of arrest.

The police never made DC Lunn’s pocket note book available, so were unable to make out their case for the arrest being lawful in this regard, either.

In his witness evidence, almost entirely unconvincing throughout, Detective Inspector Mark Taylor told the court (i) that the time constraints of voluntary attendance may not have been sufficient; (ii) there was a need to secure information contained, in particular, on Dr Rashid’s phone; (iii) there was a need to obtain evidence seized on arrest for purpose of later interviews. 

In her closing submissions, Miss Checa-Dover has posited that ‘there was an obvious risk of suspects tampering with evidence or tipping off co-conspirators’. Ignoring the fact that almost all of them had been arrested, interviewed and bailed over preceding five months, and that DI Taylor during three days in the witness box had not raised this point. A detail picked up by Mr Justice Lavender.

The judge dismissed all three of DI Taylor’s reasons: The first one because there is no 24 hour limit on voluntary interview ( as a former custody sergeant a point with which the detective should have been familiar). The other two reasons did not suffice because the police said they had search warrants (although never produced at court) and, therefore, the only evidence that would have made the arrest necessary would have to be concealed on Dr Rashid’s person.

Additionally, given that he had been expected to be cooperative, according to DI Taylor’s own evidence, an arrest could not reasonably be thought necessary unless he had refused to cooperate (or given that appearance).

Lumba Parker argument: The judge, having concluded that there were no reasonable grounds for believing that it was necessary to arrest Dr Rashid, found that it cannot be said by the police that, if DC Lunn had not arrested him, another officer would have arrested him lawfully.

Also, on the same basis, there is no scope for the application of the Ex Turpi Causa doctrine, since the conduct on the part of Dr Rashid referred to in final paragraph of the Recorder’s judgment merely provided the occasion for his arrest, but did not cause him to be arrested unlawfully.

Mr Justice Lavender, accordingly allowed the appeal. The judgment of  Recorder Nolan is quashed and replaced by judgment, in favour of Dr Rashid, for damages to be assessed for his unlawful arrest.

If the police and Dr Rashid are unable to agree upon damages, a trial to determine causation and quantum may follow. In the meantime, a hearing before Mr Justice Lavender has been listed for 16th October, 2020 to deal with matters consequential to the judgment, including costs and any prospective permission to appeal application by either side (read more here).

Dr Rashid said after the hearing:

“The past eight years have been incredibly stressful for both me and my family in putting right all the wrongs caused by the unlawful arrest, which the High Court has now ruled to have been completely unnecessary. Not least, succeeding at judicial review in 2012, following a suspension from practicing as a GP, instigated by these same police officers; then being exonerated by the General Medical Council in 2016 of all the numerous false complaints made by these officers; and now this latest court success, 4 years later, gives some measure of vindication, but very little satisfaction. The chief constable should now publicly, and sincerely, apologise for the appalling conduct of not only a significant number of his own officers, but also those that represent him”. 

He added; “There should be a full investigation by the police watchdog into the fact that the police officer who arrested me was also holding himself out, at the same time, as a private detective to insurance firms, through a bogus company, and the whereabouts of the £183,000 said by the police themselves to have been paid to this officer by an insurance company at the time he carried out this completely unnecessary and unlawful arrest. The police watchdog, and the CPS, should also be looking very carefully at the transcript of the evidence given in court by DC Lunn’s line manager, DI Mark Taylor, and ask why he complied with an order by a senior officer in a conspiracy to keep the improper activities of the former DC Lunn secret from the people he was prosecuting, and the trial jury, which may make their trial unfair and convictions unsafe”

Finally, he said: “I am very grateful to my barrister, Mr. Ian Pennock, who has remained steadfast throughout this ordeal and, along the way, has put those who believed they could deny me justice, firmly in their place”.

West Yorkshire Police press office was been contacted for comment. They did not respond.

Page last updated: Thursday 28th October, 2020 at 1255 hours

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 2015-2020. 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 Media, with appropriate and specific direction to the original content.

 

‘A grubby little police force’

This catchphrase, now widely shared on social media and indelibly associated with Durham Constabulary, was first coined in November 2016 as part of communication between journalist, Neil Wilby, and the force, concerning a concise, plainly expressed freedom of information request (read in full here).

The disposal of that request quickly turned very ugly after Durham made, very arguably, the worst and most offensive response in the history of the Freedom of Information Act, 2000. It was an unwarranted, unvarnished, libellous attack by a police force, against an enquiring reporter, that also contained a series of deliberate and inexcusable untruths. There had never been any communication or interaction between them prior to that request, which made a response of that deeply offensive nature all the more inexplicable and inexcusable.

Those police officers responsible, both civilian and warranted, should, on any independent view, have faced a criminal investigation or, at the very least, a disciplinary hearing. A clearer case of misconduct in public office or, in police regulations parlance, disreputable conduct, would be hard to find.

Interestingly, the senior officer with portfolio holder responsibility for information rights at that time was Deputy Chief Constable Jo Farrell, since promoted to the top rank following the sudden, inexplicable ‘retirement’ of her predecessor, the vastly overblown Mike Barton.

Their motivation, it seems, was to frustrate a journalistic investigation into yet another shoddy operation, in a lengthy cataloge in that era, by North Yorkshire Police. Durham’s part in that probe is that they had, allegedly, taken over a fraud investigation from NYP as it involved a very prominent, and influential, former police authority Chair in North Yorkshire, Jane Kenyon. Over the years, a regular object of derision in the satirical magazine, Private Eye, regarding her dubious business dealings (read more here).

The criminal ‘investigation’ also featured Thomas William Miller, a Scarborough councillor better known as Bill, who is now married to Kenyon. The victims of the alleged fraud were one Miller’s sons, Jeremy, and his daughter in law, Karen. All four had been involved in a company called Dales Timber Ltd.

In the event, disclosure was refused by Durham after a series of ludicrous, childish, unlawful posts on the What Do They Know website, upon which the request was first posted. They relied on Section 14 of the Act, saying the request was ‘vexatious’, without actually explaining why.

Following a complaint to the Information Commissioner’s Office (ICO), the Durham decision was overturned. During the watchdog’s investigation the police force continued their smearing campaign against the journalist. Given weight to the argument that this was not about an information request but much more about pursuing a vendetta.

They eventually, and reluctantly, made partial disclosure from which it could readily be deduced that the fraud ‘investigation’ on behalf of NYP was a sham. There was simply no intention to gather probative evidence, take statements from key witnesses and/or suspects, seize evidence or apply the necessary rigour to what, on any independent view, was a very serious matter involving a high profile public figure with a history of dodgy dealing. Efforts since, via the Police and Crime Commissioner, the disgraced Julia Mulligan, a close Conservative Party associate of Jane Kenyon, to have the flawed fraud investigation re-opened, were vigorously rebuffed.

The outfall from that venomous attack by Durham is still the subject of civil proceedings that were first brought in November, 2017 against Durham, who have done everything they can to frustrate that process. A resumed hearing is listed for November 2020. The first, in December, 2019, was adjourned due to the court not allocating sufficient time for the hearing to be completed. [The court service’s over- listing of multiple back-to-back hearings, with no provision for urgent or emergency matters to be dealt with by district judges, will be the subject of a future article].

The claim has been brought by way of section 13(2) the Data Protection Act, 1998 (since superceded) following the sub-optimal disposal of a data subject access request; Durham’s Information Rights Manager, Leigh Davison, has admitted the breach and apologised in her witness statement but, at the same time, their counsel, Daniel Penman, pleads that there is ‘no cause of action’ and advises Durham to refuse to pay the nominal damages sought.

Penman, an oppressive, excessively bullish and sometimes foolish individual is, in those terms, ideally suited to this particular client. One of his bizarre claims, made during informal discussions with the district judge at the conclusion of the last hearing, designed only to humiliate his opponent, was that Mark Gosnell, a senior civil judge based in Leeds, is known as ‘Mr Justice Gosnell’. He was not then and is still not now a ‘red judge’; notwithstanding the very fine and highly regarded arbiter that His Honour undoubtedly is.

He did not welcome the advice from a seasoned journalist/court reporter that, without a change in approach towards other parties to litigation, or journalists, he may well not make the advance in his career his undoubted promise as an advocate might warrant. An approach also in evidence at Bradford Law Courts during a hotly contested civil claim at which both journalist and barrister were present (read here) when he and his leader, the similarly bullish Olivia Checa-Dover, tried, unsuccessfully, to prevent Neil Wilby reporting on the case. Anyone reading that trial summary will understand precisely why those instructing counsel, led by Alison Walker of West Yorkshire Police no less, would have preferred the highly controversial matters aired in the resolution of that £5 million claim, including lurid details of the activities of a “bad apple” officer (read more here), to remain concealed.

A second civil claim is to be issued shortly against Durham concerning the same data subject access request: The force, via Ms Davison, maintains that all materials to which the applicant was entitled were disclosed, when it is patently obvious that such an assertion has no basis in either the facts or evidence. There is also a peripheral issue of the torn packaging in which the subject access materials were sent. Taken at its face, a minor matter of course, but one that created significant distress and alarm at the prospect that sensitive personal data, sent out by a police force, was accessible to anyone within the postal service.

At the time, Durham didn’t even have the courtesy or professionalism to respond to the email and attached photographs, evidencing the flimsy, careless and, in fact, unlawful manner in which the data was transported. But for “a grubby little police force” that type of treatment comes as standard. They utterly resent any form of scrutiny or challenge.

Ms Davison is the subject of robust criticism, over both disclosure failings and her lack of professionalism and the seeming lack of integrity of her department, from other service users such as Huddersfield businessman Stephen Bradbury who has also succeeded at the ICO in his complaint against Durham and has been forced to issue civil proceedings, grounded in Section 168 of the Data Protection Act, 2018 and Article 82 of the General Data Protection Regulations (GDPR), over a grotesque breach of his privacy and misuse of personal data. Despite the ICO finding, the police have ignored all attempts to settle the claim without resort to legal action.

The case of local man Mel Dawson has reached the national newspapers (read here). Durham Constabulary has been responsible for a quite remarkable sequence of ‘disappearances’ of important data. Not least of which is all materials related to a search warrant that Mr Dawson asserts was unlawfully obtained.

Another more startling critic of the Information Rights Department, Ms Davison, the force’s Legal Services Department and Chief Constable Farrell is one of their former colleagues, Michael Trodden, who complains bitterly over disclosure failings relating to a criminal trial at which the detective was cleared by a jury (read here) and in misconduct proceedings that followed.

A third Yorkshire man, Darren Longthorne, together with his wife, Tracey, are also fiercely critical of Ms Davison, and others, following the death of the latter’s father and a botched investigation by Durham that followed. The inevitable disclosure failings by the police are at the heart of their complaints.

This is an emerging picture of sustained abuse of the Freedom of Information Act, the Data Protection Act and the Criminal Procedure and Investigations Act by a law enforcement agency. A national disgrace and one upon which the statutory regulator should be taking much more robust action than the occasional slap on the wrist.

It is a near certainty folowing publication of this article that other complainants will come forward and add further weight to the “grubby little police force” strapline.

More recently, yet another decision made by the ICO has gone against Durham following a further Neil Wilby information request (read in full here). The genesis of the request was the media storm over another grotesquely failed ‘outside force’ investigation. This time concerned the alleged theft of sensitive documents relating to the review of the police actions following the Loughinisland massacre in 1994.

Durham Constabulary and the two officers who led the investigation, at the invitation of the Police Service of Northern Ireland (PSNI), the aforementioned Barton and the civilian investigator, Darren Ellis, about whom much has been written elsewhere on this website (read more here), were absolutely slaughtered both in the High Court and the national press over their conduct – and particularly over warrants obtained unlawfully against two hugely respected Irish journalists, Trevor Birney and Barry McCaffrey. The latter two are presently involved in mediation over settlement of their claims for unlawful arrest, trespass and detention. Neither Barton nor Ellis have faced any investigation or proceedings over their ghastly conduct.

In their response to the information request, again very precisely drafted, Durham claimed that they held no information and that under the Police Act, 1996 the request should be transferred to Durham. It was a response so ludicrous that it might have been written by a 12 year old – and was nothing more than a peurile, vacuous ruse to avoid disclosing more damaging material, particularly internal and external emails, to journalist they dislike intensely. If Ms Davison didn’t write it herself (the response was sent anonymously in breach of Code of Ethics and Authorised Professional Practice), then it went out under her departmental direction and control.

The force even refused to fulfil their obligations under FOIA and, more particularly, the College of Police’s Authorised Professional Practice, regarding the request made for an internal review of the decision not to disclose anything.

Durham has also now revealed that four other requests were received on similar subject matter and they got away without making any disclosure to those applicants.

It took the ICO seven months to reach their decision but, for them, they were scathing in their criticism of Durham and directed that the request did have to be dealt with by them and all materials prior to the investigation commencing should fall for disclosure. Some, but not all, of the disclosure has now been made and, as expected, almost the entire artifice was designed to protect one man: the thoroughly disgraced Darren Ellis.

PSNI do not escape censure either as they repeatedly, and unlawfully, intervened in the request, apparently on behalf of Durham, attempting to take it over and then refusing disclosure by way of a section 31 exemption. One is entitled to muse over the calibre, and integrity, of employees of that force engaged in their disclosure unit and, of course, the unseen hands directing them from above.

The battle over the Loughinisland disclosure continues, however, as once again, it is clear that not all the materials known to be in existence at Durham have been disclosed. A matter that is, once again, destined for both the ICO and the civil courts.

In the meantime, the public are entitled to seriously question the hundreds of thousand of pounds, and countless officer hours, squandered by Durham Constabulary (and, in two of the cases, NYP and PSNI) to simply conceal materials that will further damage their reputation as “a grubby little police force”. It is a matter so serious that it should warrant a mandatory referral of the conduct of those officers involved, from the past and present chief constables downwards, to the Independent Office for Police Conduct.

The immediate past chief constable, Mike Barton, now faces an uncomfortable few weeks as the real reason for his hasty exit from the top job has been exposed by an insider. A follow-up to this article will be published during w/c 28th September, 2020, wherein those revelations will be expanded upon.

It is not a pretty picture for either Barton or his boss, the late Ron Hogg, whom, it seems, concocted the ‘spend more time in my greenhouse’ story that the local and regional media swallowed whole. Within days a national newspaper had revealed that Barton had taken on a lucrative role with a Canadian IT company (read more here). This, in addition, to continuing to pick up the pieces from his force’s failed enterprise in Northern Ireland. Both a long way from his garden in Blackpool.

Barton received a CBE on the day he required. In all truth, one is entitled to ask how he had the brass neck to accept it.

The police force press offices at Durham and PSNI, the interim Police and Crime Commissioner for Durham have all been approached for a statement.

Page last updated: Thursday 3rd September, 2020 at 1300 hours

Photo Credits:

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 2015-2020. 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.

Appeal hearing report: Leeds High Court Dr Abdul Rashid v West Yorkshire Police

The hearing was listed to commence at 10.30am on Thursday 14th May, 2020 before Mr Justice Nicholas Lavender in the Leeds District Registry of the High Court. It got under way shortly after 10.45am after dealing with some minor technical glitches.

Pemission to appeal was granted on the papers by the same judge on 17th December, 2019 sitting in Newcastle Cown Court.

The judgment under appeal was handed down by Mr Recorder Ben Nolan QC on 20th September, 2019 at the conclusion of a ten day trial (read full daily reports here). Dr Rashid is claiming damages against West Yorkshire Police (WYP) for unlawful arrest, unlawful detention and trespass over events that took place in March 2012 when 16 police officers attended his home in Bradford at 6.15am.

Image

The parties were represented, respectively, by Ian Pennock of counsel, instructed by Simon Blakeley and Olivia Checa-Dover of counsel, instructed by Alison Walker, Deputy Head of Legal Services at WYP.

The background to the appeal can be read here. There was palpable tension between the two legal teams, throughout the substantive hearing, most notably concerning disclosure.

The appeal hearing was held remotely via Skype Business. Quality of transmission was generally good and proceedings progressed smoothly. Particularly, as the judge’s dexterity in dealing with an elecronic bundle filed by the Claimant which, because of its size (232MB) was slow to load, and two lever arch files, supplied by the police, improved markedly during the morning session.

Mr Pennock, on behalf of Dr Rashid, took the court to the eight Grounds of Appeal upon which his client’s case is based. There are two further alternative Grounds that would only be triggered if the appeal succeeds.

But the first part of his submissions were taken up with what he characterised as ’22 bad points’ in the police’s skeleton argument, that had necessitated a supplementary skeleton argument from him, extending to 40 pages. He lamented that ‘the sideshow’ of correcting WYP’s version of facts and evidence, from the court below (the hearing at Bradford County Court), was not at all helpful to this court. It had, Mr Pennock said, required ‘a root and branch approach’, occupying a large amount of time, and the necessity of exhibiting a large number of passages from the court’s approved transcript.

The judge made clear that, whilst he would scan read the supplementary skeleton, it was not part of his judicial function to referee such class of disagreements between competing counsel unless, of course, they went to the heart of the matters under consideration in the instant appeal.

Mr Pennock focused to a significant extent on the police’s ‘shifting goalposts’ of the reasonable grounds for arrest of Dr Rashid, of which there are five different versions as things stand. The necessity of the arrest was also the subject of extensive discussion as another of the key appeal points.

There was a moment of levity after Mr Pennock explained that the ‘eccentric’ Dr Clive Tedd, upon whom the police relied for their ‘expert’ medical advice, claims to be able to induce whiplash injuries by clapping his hands. Something he had learned by buying second hand books on Amazon. Mr Justice Lavender enquired, deadpan, if Dr Tedd ‘had clapped his hands at trial’.

The final ten minutes of the morning session were taken up by Miss Checa-Dover, on behalf of West Yorkshire Police, and continued with her client’s response to the Grounds of Appeal after the lunch adjournment. She maintains, on behalf of her client, that the judgment from the substantive hearing was adequate, sufficiently well reasoned and that Detective Inspector Mark Taylor, the main police witness came through the examination and cross-examination of his evidence “with flying colours”.

As expected, Mr Justice Lavender indicated that judgment would be reserved and handed down at a future date, yet to be determined. There was a discussion with Mr Pennock as to whether, in the event that the appeal was upheld, he would be able to substitute his own findings for those of the court below and dispose of the matter substantively as opposed to ordering a re-hearing of the case before a different judge.

UPDATE: A more complete report of the hearing will appear in conjunction with the handing down of the judgment which is now expected to be handed down during the first two weeks of August, 2020.

 

Page last updated: Tuesday 28th July 2020 at 0715 hours

Photo Credits: Bradford T&A

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 2015-2020. 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.

A ‘car crash’ of a judgment

On 20th September 2019, Mr Recorder Ben Nolan QC handed down his judgment in a £5 million civil claim brought by Dr Abdul Rashid against West Yorkshire Police. It followed a Bradford County Court liability hearing lasting two weeks, during which evidence was heard from three police officers repesenting the defendant. The claimant, a well-known Bradford GP and medico-legal practitioner also gave witness box testimony.

The claim concerns wrongful arrest, false imprisonment and trespass over events that happened in March, 2012 during a police investigation codenamed Operation Thatcham. It, ultimately, resulted in the conviction of 45 men over what have become known as ‘cash for crash‘ fraud offences.

A terrifying pre-dawn raid, in a middle class suburb of Bradford, saw eighteen police officers turn up at the doctor’s home where he, his wife and three young children were asleep. Other squads of officers had been despatched to his two surgeries and other business premises. It was alleged he was part of a conspiracy to defraud, relating to the cash for crash claims, although no particulars were ever put to Dr Rashid in thirty-five hours of police interviews, across a seven month period. He was never charged with any offence.

Interview records show that the questioning of the doctor, by purportedly experienced detectives, was largely infantile and almost entirely pointless. The police simply had no evidence of criminal offences, but were down a rabbit hole without an escape route. Not least, because there is no incentive for any medico-legal practitioner to commit fraud: He (or she) is paid by an instructing lawyer, whether an injury insurance claim succeeds or not – and irrespective of the content of the doctor’s report. A point that seemed completely lost on the police.

Dr Rashid was eventually released from police bail in June, 2013. The justification for the arrest or, in legal terms, the reasonable grounds for suspicion of the offence for which he was arrested, lie at the very heart of the matter.

Notable for his absence from the civil court proceedings was the arresting officer, DC Mark Lunn, described in court as ‘a bad apple’, and about whom much has been written elsewhere (read here, here and here). The police, via their barrister Olivia Checa Dover, had told the court at a pre-trial review, seven months earlier, that they were ‘unable to locate’ DC Lunn – a matter later denied at the substantive hearing. The detective (the term is used loosely) was, in fact, working for the police watchdog, the discredited and now dissolved Independent Police Complaints Commission (re-badged in January 2018 as the Independent Office for Police Conduct), just 300 yards from police HQ, in a job actually facilitated by those who said they couldn’t locate him.

Lunn pic 3
Mark Lunn, whom the police were ´unable to locate´

An account of that pre-trial hearing, before HHJ Neil Davey QC, can be read elsewhere on this website by clicking here and has stood unchallenged since that time, including by the police to whom right of reply was offered.

A comprehensive day-by-day account of the final hearing can also be read on this website by clicking here. West Yorkshire Police tried, unsuccessfully, to prevent the author of this piece reporting on those proceedings in an attempt, not only to frustrate open justice (routine for them), but, more crucially, to prevent public exposure of the rotting effect of the ‘bad apple’ officer, culminating in what appears to be a shocking conspiracy to pervert the course of justice, by six of their officers in the same barrel, that has left an unpleasant stench hanging over the large number of Operation Thatcham convictions.

At the conclusion of those proceedings in Bradford Law Courts, conducted in a palpably toxic atmosphere throughout, Recorder Nolan dismissed the claim in controversial circumstances. Not least, because of the bitter and long-running battle over disclosure, or, more to the point, the lack of it, by the police. The handling of those matters, viewed from the press seats at least, appeared to fall short of the standards one might reasonably expect of an alert, fair-minded judge. It also must be said, by way of balance, that it is a feature of many civil or tribunal claims (and in some notable criminal trials) involving West Yorkshire Police; the latitude the force is frequently given from the bench, and a tame local media, simply encourages their bad practices.

A permission appeal to the High Court by Dr Rashid was, unsurprisingly, filed by his lawyers soon afterwards. It was granted on the papers (without a hearing) on 17th December, 2019 by Mr Justice Lavender. Not a common occurrence in such matters.

A full appeal hearing is listed for 14th May, 2020 before the same judge, sitting in the Leeds District Registry. It is, however, more than likely, in the prevailing SAR-COV-2 crisis, that the hearing will take place via video conference.

The written judgment of Recorder Nolan, typed, unusually, in 16pt with generous margins top and bottom, runs to 14 pages. It is littered with schoolboy syntax errors; headed ‘judgement’ not ‘judgment’; pages are not numbered; it is undated; and carries no unique case reference or details of the parties’ representation. It even includes an exclamation mark at the end of one sentence, unprecedented in the author’s experience, encompassing many hundreds of court judgments. Likewise, the sight of a barrister being addressed only by his surname is, similarly, unheard of.

All of which gives it an amateurish look: Surprisingly so, for a part-time judge who has been at the Bar for 49 years and, plainly, has a very high opinion of himself – and one not at all slow in derogating others, both in his courtroom and on social media. A memorable example being that hard-won press cards, hologrammed and with photo ID embedded, authorised by the National Union of Journalists and the National Police Chiefs Council, are “handed out to anybody“.

E0B0F972-F79B-4D0D-BFC4-317F3CB4A9F1

There was no perfected copy of the judgment provided to the press and it was not published electronically by the court. So, this piece is grounded in what was handed, by the court clerk, to the two members of the press present at the time.

By the tenth, and last, sitting day, the claimant’s legal team knew what to expect. A hearing where one party, and their counsel, appeared to be favoured throughout was not going to end well – and so it proved.

But, it was not just the judge’s decision to dismiss the claim that caused dismay; that was already built into the claimant’s expectations. It was the perplexing way the background narrative was rehearsed, and the equally puzzling finding of fact, that gave rise to very considerable concern. As did the judge’s consequent rulings on the applicable law.

It is well-established case law that parties to a civil claim should be able to understand why they succeeded or failed. Indeed, it can be a ground upon which an appeal can, in some circumstances, be upheld.

In interview after the trial, Dr Rashid, a highly intelligent and accomplished individual with an acquired, if reluctant, knowledge of civil law and procedure, was, it is fair to say, completely bewildered. As was his legal team, Ian Pennock of counsel (the barrister simply referred to as “Pennock” in one section of the judgment) and his instructing solicitor, Simon Blakeley.

Moreover, taking the daily court reports as a starting point, it seems as though the Nolan judgment concerned a different trial altogether. Those reports, amounting to almost 12,000 words, stand unchallenged by both the police, and the judge, despite dark, but unspecified, mutterings during the trial.

The handed down judgment, most regrettably, gives the appearance of a pre-formed decision with threadbare, and in places, inexplicable or, indeed, a complete absence of cogent analysis or reasoning. The background narrative, and consequent fact finding, also appears to leave too many crucial issues unresolved and bizarre, apparently unsupportable, conclusions on at least two of the central matters: The credibility of the principal police witness and the diligence (and record keeping) of the Operation Thatcham investigation.

More crucially, to those adjacent to the applicable statutory framework, the judge appears not to have turned his attention to the state of mind of the arresting officer and each of his alleged reasonable grounds for suspecting Dr Rashid of committing the offence, for which he was arrested, and attached to them his reasoning for finding in favour of the police. That, one might say, was his primary function as sole arbiter of this claim.

From the press seats at least, the claim largely turned on the evidence of one police officer: Detective Inspector (DI) Mark Taylor. A sergeant at the time of the arrest of Dr. Rashid and the supervisor of the errant former detective constable, Mark Lunn.

Having previously served as a custody sergeant, DI Taylor was part of the Kirklees-based Proceeds of Crime Act (POCA) recovery team. Lunn was seconded to that team from his previous role as a beat officer in Huddersfield and, later, that town’s Criminal Investigation Department (CID).

As reported contemporaneously, DI Taylor’s evidence underwent a remarkable transformation between examination on his evidence-in-chief by Miss Checa Dover and cross-examination by Mr Pennock. From a witness giving ready answers, with quite remarkable recall of detail from events 7 or 8 years previously, to a hesitant police officer constantly having to think carefully about what he was saying, and who answered thirteen times in the mode of ‘don’t recall, don’t remember, don’t know, can’t answer that, got that wrong’. Despite having been very closely involved in the police’s defence of the civil claim for almost three years before he gave his testimony in court – and in other connected regulatory proceedings, in which the police were the prime movers, since 2012.

In answer to Mr Pennock’s probing, he frequently had no explanation as to why many of the key documents that would have assisted the claim of Dr Rashid had either gone missing, been destroyed or were concealed from the claimant. Particularly, those that were effectively under his control, if the judge’s version of his role in the case is to be taken at face value. These include his own pocket books, day books, email trails, weekly reports to his superior officers, meeting notes, seized materials, copies of warrants and their supporting documentation (At the pre-trial review it was heard in legal submissions that DC Lunn’s emails were no longer available on the police’s ‘Cloud’ data storage. The judge at that hearing did pointedly observe that someone must have taken pro-active steps to remove them).

During cross-examination, DI Taylor was unable to direct the court to any document in the trial bundle – running to twelve densely packed lever arch files – where the reasons for a decision to arrest Dr Rashid are set out, and properly recorded, in accordance with authorised police practice. He did, however, concede, in evidence, that for such a major decision affecting a high profile and well-established local doctor he would have expected them to be recorded in the investigation’s policy log at the very least, together with pocket books or day books of those involved in the decision, meeting notes and his own weekly reports. It is a specific requirement under the Police and Criminal Evidence Act, 1984 (PACE) that notebook records are kept of actions preceding, during and after arrest of a suspect. DI Taylor, the supervisor of the arresting officer in Dr Rashid’s case, is unable to explain where those specific records are – or why they were not retained. Or, indeed, if they were ever made.

The court also heard that DI Taylor was centrally involved in the presentation, by West Yorkshire Police, of no less than five different versions of the ‘reasonable grounds for suspicion’ that underpinned Dr Rashid’s arrest. The first, in May 2017, being in answer to the filing and serving of the claim form, by way of their formal Defence; the last one during the trial, at the request of the judge whom, presumably, like most others present in court, was bewildered at the constantly changing police landscape. The second version was in an Amended Defence filed in July 2018 when it became clear that the original Defence was unlikely to resist the claim; the third and fourth differing versions were, respectively, DI Taylor’s witness statement dated December 2018 and his oral evidence from the witness box at trial nine months later.

One of the three remaining grounds cited by DI Taylor as the support for the decision to arrest the doctor, in that witness box testimony, from a list that at one time comprised twenty-one purported reasons, concerned a matter that only became known to the police over five months after the arrest. The other two were (i) an appointments list found in the vehicle of a person arrested in the first phase of the crash for cash investigation, but not subsequently prosecuted, and (ii) the alleged inadequacy of Dr. Rashid’s medico-legal reports. Those two grounds alone, says the detective, are sufficient to resist the claim of wrongful arrest and false imprisonment.

Examination of the trial bundle now reveals a different ground advanced by DI Taylor that is not in either of his witness statements or his court testimony. In an email to the Ministry of Justice he states baldly: ‘The main thrust of our fraud case: Was the doctor [Rashid] doing anything different to other professionals’.

The fact that all five (or now six) police versions of the reasonable grounds for suspicion are different is an important point; one that an independent reviewer might consider strikes at the heart of both the police force’s probity, and DI Taylor’s own credibility as a witness in these proceedings, yet is completely absent from the judgment. There is no reference to them at all, including the fact that the twenty-one shot West Yorkshire Police machine-gun had been reduced to just two weak blows on a pea-shooter.

Furthermore, on at least three occasions in the witness box, DI Taylor gave oral evidence that directly contradicted written evidence of his own that was to be found in the trial bundle. They were not minor points either, they were central to the police’s defence of the claim. It is more difficult to conclude that this class of historical revisionism was the product of innocent mistakes, or memory aberrations, given his remarkable powers of recall on his first day giving evidence.

Fortunately, for Dr Rashid, when taken to a compromised Third Party Disclosure Order (in successful proceedings wherein the decision of the General Medical Council to suspend the doctor from medical practice, at the instigation of DC Lunn, was quashed) which confirmed, many months after his arrest, that West Yorkshire Police confirm that [Dr Rashid] was not arrested on the basis of a specific allegation made by an individual outside, or within, West Yorkshire Police, DI Taylor, as Lunn’s supervisor, agreed that was how he understood the position to be. He was the disclosure officer in those GMC proceedings and, as such, attached to the persistent smearing of the doctor, by the police, then and ever since.

He could not, however, explain to the court why the note of a meeting, recorded on the policy log as taking place on 19th January, 2012, at which he claimed he was present, did not feature his name amongst the list of attendees posted by DC Lunn. That ‘team’ meeting was to assume high importance in the judgment, by way of deflecting Lunn’s central role in the arrest. DI Taylor claims that the grounds for Dr Rashid’s arrest were discussed there, even though the log only records that the decision to proceed was maintained. That strongly infers there was at least one other meeting, about which there appears to be no entry on the policy log, or entries in day books, or post-meeting email notes, or follow-ups. There was also conflicting testimony from DI Taylor as to whether the meeting was held in Batley or Bradford.

This January 2012 meeting appeared to be the only area of his cross-examination where DI Taylor’s powers of recall were revived. Distinctly remembering detail of a meeting with a Crown Prosecution Service lawyer, Julian Briggs, whom, on his own admission, he either met, or spoke to on the telephone, almost every single working day during that era. Quite remarkably for a meeting of such purported gravity, no-one at that meeting, it seems, made any record of the grounds of arrest of Dr Rashid. Including the CPS lawyer. Or, if they did, the police chose not to disclose them. Another, one might say crucial, point absent from the judgment.

Under questioning, it emerged from DI Taylor that the policy log itself was a key part of the general shambles that threaded through the running and supervision of Operation Thatcham. DC Lunn, on the evidence and with his shocking disciplinary record, was an unwelcome cuckoo in the POCA nest at Batley Police Station. Curiously, as a lowly, inexperienced, self-aggrandising detective constable, with a history of unlawful arrest complaints against him, albeit unsubstantiated, and a stranger to the department, DI Taylor allocated Lunn an office of his own. In the face of him still being on a written warning over a previous internal police finding of misuse of the force’s computer systems.

The policy log created by DC Lunn did not, incredibly, form part of those same police systems and was not linked to either their force-wide servers or the more local Infoshare network. He could add, amend, delete any entry on the Word document and no-one would be any wiser. Operation Thatcham was, to all appearances, a one man maverick operation that breached any number of authorised police practices, management of police information protocols, codes of conduct and, very arguably, was operated outside data protection laws.

DI Taylor told the court Lunn had been ‘recommended’ to his POCA team, but he did not say by whom. It was not explained, either, why this major investigation did not fall under the remit of one of the specialist criminal divisions in West Yorkshire Police under the supervision of a qualified Senior Investigating Officer (SIO). [In response to a post-trial freedom of information request, West Yorkshire Police made a number of palpably false responses concerning these matters in order to further conceal Thatcham’s procedural shortcomings].

Although presented by the police as the officer in charge of Operation Thatcham, in an attempt to downplay the role of the discredited DC Lunn, DI Taylor gave conflicting evidence over the number of suspects arrested in the first phase of the investigation. He told Miss Checa-Dover it was ten, when it was put to him by Mr Pennock that the actual number was thirty-eight, it was conceded, reluctantly, that he ‘got it wrong’.

Thatcham was the biggest fraud investigation in the history of West Yorkshire Police with ninety one suspects arrested in total. DI Taylor, as noted elsewhere, had been involved in regulatory and civil proceedings against Dr Rashid for seven years, in matters arising from it. Yet couldn’t answer correctly a simple, basic question concerning the operation.

Mark Taylor’s dual role of supervisor of the discredited arresting officer in the criminal matter, then sole disclosure officer, conflicted but apparently unsupervised, in the civil claim, should have given rise to concern amongst those anxious to maintain public confidence in the civil justice system. But the seriously alarming catalogue of disclosure failings, with implausible explanations, or simply no explanation, attached to most of them, did not appear to cause any anxiety to the judge at all. Indeed, his verbal attack on Mr Pennock, on the last day of the trial, when the issue of disclosure failings was raised, yet again, was as unnecessary as it was unpleasant.

These were, in essence, the disputed disclosure points which should be read with these two comments from the judge very much in mind; (i) ‘I don’t want to deprive Mr Pennock of material which he quite rightly wishes to use’, (ii) ‘I don’t want this case to go wrong by dint of  disclosure error’ and also the admission from DI Taylor that he was ‘exhibits officer trained’:

– The reasons for arresting Dr Rashid do not, or no longer, appear in the operational policy log. No audit trail relating to that document has been filed and served by the police.

– The Word document setting out reasons for suspecting Dr Rashid of criminal offences, given to Dewsbury Magistrates’ Court by way of a formal application for search warrants of Dr Rashid’s premises, is not retained on the police server.

– DI Taylor’s workbook, covering, according to his own evidence, twelve significant police investigations during that period, and, more crucially, recording the reasons for arresting Dr Rashid, was missing. As is that of every other officer involved, including the arresting officer, DC Lunn.

– The police have not produced the weekly e-mail reports, from DI Taylor to his superiors, setting out the reasons why they wanted to arrest Dr Rashid. He told the court that they still exist and could be accessed via the force’s Enterprise Vault.

– During the phase one arrests in Operation Thatcham copies of scripts that were to be used by personal injury claimants, during their consultations with doctors, were seized. When both Mr Pennock, and then the judge, asked DI Taylor where they were, and why they had not been retained, there was an interjection from Miss Checa-Dover who asserted that ‘it has been years since the criminal prosecutions had ended [in fact, April 2014] and the civil claim issued [in fact, letter before claim issued December 2015].

– Appointment diaries seized by the police from other medico-legal practitioners involved in ‘crash for cash’ claims are missing. DI Taylor told the court, ‘they are no longer in the police’s possession because it’s [the criminal trials in Operation Thatcham] gone through the statutory appeals process’. He could not explain to the court, when asked by the judge, why, when the requirement is to retain such materials for 6 years, they were no longer available. He did confirm that a CD disc for each of the doctors’ diaries had been exhibited at the trial.

– Not one contemporaneous record of the reasons given for the decision to arrest Dr Rashid can be located anywhere in the many police records where one should find them or, indeed, where it is a serious breach of Police Regulations not to find them.

– The police seized Dr Rashid’s phone and laptop. From those devices they extracted text messages (SMS). They disclosed only part of those text messages (oddly enough those that might fit the police narrative). The PC and phone had been ‘wiped’ when eventually returned to him. DI Taylor, or the police lawyers when asked, have provided no plausible explanation beyond a haughty ‘we can’t disclose what we don’t have’.

– DI Taylor’s evidence in the witness box concerning both his own philosophy as an experienced detective and, more crucially, wider police force policy: ´If it is not recorded, it didn’t happen’.

Mr Pennock submits that these provide a more than a sufficient evidential base to advance the proposition that the police records had been ‘sanitised’ to remove (or conceal, or an admission that they never existed) all the contemporaneous reasons for deciding to arrest Dr Rashid. A plausible, indeed likely, reason is that the police subsequently believe such reason(s) to be insufficient to justify that arrest and, as such, resist the civil claim.

However, none of his highly questionable evidence, or witness box testimony that was not in either of his witness statements (very often fatal to the credibility of a live witness), or the list of disclosure failures, either of, or involving, DI Taylor, appeared to trouble Mr Recorder Nolan even slightly. Indeed, his judgment, incredibly, records him as ‘a truthful, reliable and extremely professional police officer of the highest calibre’. He embellishes that claim by asserting that ‘his evidence was wholly corroborated by contemporaneous evidence’ and, to top off, gives his ‘firm view’ that ‘this [Operation Thatcham] was a well-run, closely-monitored, highly competent criminal investigation’.

Mr Recorder Ben Nolan QC

It is, set against the evidence heard first hand in court, contemporaneous reporting and, for certainty, a review of the section of the transcript covering DI Taylor’s testimony, a passage in a judgment that is as astonishing as it is shocking. Even without taking into account the number of times he had to be ‘rescued’ or led by either the judge himself, or Miss Checa-Dover, when stuck for answers to questions put to him by Mr Pennock. Indeed, Dr Rashid’s lawyers submit that on at least three different occasions the judge appeared to stray into giving evidence himself.

The only conceivable explanation being, that if an objective conclusion had been drawn from DI Taylor’s variable and selective memory, and his contradictory, frequently unimpressive evidence; his troubling supervisory failings in the criminal investigation; and his highly questionable role as disclosure officer in the civil proceedings, then he would have been found as a witness whose reliability was open to serious question and the defence of the claim dangerously, and probably fatally, undermined.

Recorder Nolan, in the face of an invitation from Mr Pennock, also drew no adverse inference from the absence of the arresting officer from the proceedings, saying ‘although he is in name the arresting officer his importance to the case has been overblown’. An inexplicable finding given that it was drawn out in evidence that DC Lunn was the only officer working full time on Operation Thatcham during its first year, and, more particularly, the period leading up to the arrest of Dr Rashid, and, of over 200 entries on the investigation’s policy log in that timespan, the definitive record of decisions, rationales, actions and outcomes, every entry except one was made by that same officer. A policy log, under authorised police practice, is required to be the domain of the SIO, usually at detective chief inspector or superintending rank.

More crucially, the records of the trial clearly reveal that DI Taylor had conceded, very early in his cross-examination, by Mr Pennock, that Lunn was ‘the main man’.

DC Lunn was also, unusually, the author of the operational orders that were drawn up in connection with two different planned arrests of the doctor. DI Taylor said in evidence these orders would have been approved by a senior officer at chief inspector rank, or above. But couldn’t point the court to any written document evidencing such approval, although he asserted that the approval would not have been by telephone.

On any view, this was a one man band operating well outside conventional police constraints, with minimal and ineffective supervision. Indeed, the court heard that, in an email to a superior, Lunn described himself as ‘Team Thatcham’ in answer to a complaint about his conduct – and in a way that appeared to suggest that his pivotal role gave him a shield against any disciplinary action over any complaint from a member of the public.

The judgment is also absent of discussion, analysis, reasoning and reasons in relation to whether, or not, DC Lunn’s unauthorised, pirate activities as a private detective to the insurance industry; or an inadequately explained payment of £183,000 by a motor insurance company to that same serving police officer, via a bogus company, around the time of his arrest of Dr Rashid; the associated leverage to obtain the ‘scalp’ of a high profile medico-legal professional to promote both DC Lunn’s and motor insurance company interests; and, the startlingly deliberate decision by senior officers involved in Operation Thatcham, and three Professional Standards Department (PSD) officers to engage in what appears to be a prima facie conspiracy to pervert the course of justice, by keeping DC Lunn’s ‘extra-curricular’ activities secret from the criminal defence teams in the ‘cash for crash’ fraud prosecutions.

There is also no evidence that a thorough, proportionate investigation was ever carried out by the police, or the IPCC to whom the matter should have been mandatorily referred, into the whereabouts of that £183,000, or whether Lunn was acting alone, or in concert with other police officers, over monies that give off the strong whiff of an inducement to extend his powers beyond what was, necessarily, lawful. The judge again strays into error with his finding that, by leaving West Yorkshire Police in August, 2013, Lunn “jumped before he was punched (sic)”. It is clear from the trial bundle that disciplinary proceedings had concluded with ‘words of advice’ and DI Taylor’s testimony, during the hearing, is that he left because he had been sent to work back on the beat and was unhappy about no longer having detective status.

Even though in almost every other civil claim of this class he would be the very first port of call, DC Lunn never even provided a witness statement in the these proceedings, and West Yorkshire Police have gone to the most extraordinary lengths to conceal both his true role in the Thatcham investigation and the full extent of his own misdemeanours – and those, it appears, of many others involved in this case. In Lunn’s case that included lying in a post-arrest report about ‘patient records being strewed about the doctor’s home and car’. A matter that both the judge and DI Taylor found very uncomfortable to deal with when when taken to the evidence by Mr Pennock that there was no such occurrence.

The police were, and still are, condoning that alleged conspiracy to pervert the course of justice in order to do so. At least one person, convicted via the tainted Operation Thatcham, has complained to their PSD about the conspiracy, since the conclusion of this civil claim, and the police have sought to disapply the requirement under the Police Reform Act to investigate this very serious matter.

The IOPC (formerly the IPCC), the notoriously toothless ‘police watchdog’, with so much to lose themselves, have also chosen to further break the law by not ‘calling in’ the investigation as a Recordable Conduct matter arising out of civil proceedings. They stonewall any questions about their shielding of the corrupted ex-DC Mark Lunn for over three years in their Wakefield office. The Home Office similarly block any press enquiries on the topic.

Returning to the Nolan judgment, Dr Rashid and his lawyers point to some of the matters that the judge sought to highlight in the background narrative that did not appear to have the necessary relevance to the matters to be determined in this trial or carried disproportionate weight. For example:

– Reference to a company named NK Business Consultants Ltd, and a payment of a £825 administration fee by Dr Rashid to that company, when the police had no knowledge of either the company, or the payment, until alerted by Stuart Davies of the Ministry of Justice on 17th August, 2012, over five months after the arrest. The fact that NK never appeared on the policy log supports that fact. [The judgment goes so far as to say that the payment to NK raised ‘intense suspicion’ pre-arrest based on DI Taylor’s witness box evidence].

– The appointment of his 19 year old nephew as a director of a company Dr Rashid has formed.

– A tenant of Dr Rashid who runs a claims management company, completely unrelated to the organised crime group featuring in Operation Thatcham, or any fraudulent claim, from the downstairs shop premises of the doctor’s private medico-legal offices above (thus keeping his private practice completely separate from his NHS surgeries), is suspected to be his brother. DI Taylor had confirmed in his testimony that ‘there was nothing unusual in this’.

– The police claim that Dr Rashid’s reports are of a poor standard [relying on an ‘eccentric’ doctor who admits to the police he ‘is no expert’ and just happens to be a friend of DC Lunn’s mother] and the scale of fees charged for the reports [which DI Taylor conceded in evidence were consistent with the market rate in the personal injury arena].

– Whilst being questioned about Dr Tedd, DI Taylor conceded that despite the entry on the policy log that the doctor was a family friend of DC Lunn, he knew nothing at all about the relationship until asked about it by Mr Pennock during the trial. ‘It´s actually news to me, even at this late stage’ said the officer purorted by West Yorkshire Police to have been running Operation Thatcham.

– How quality of medical reporting became a police matter rather than a regulatory issue [The GMC in a protracted four year investigation found nothing untoward with the reports].

Conversely and perversely, Dr Rashid and his legal team might well contend, taking the contemporaneous reporting, and their own legal note-taking during the trial, as guides, that much more relevant points were either omitted from the judge’s discussion of the case, or understated as to their relevance within the factual matrix:

– The police were told pre-arrest, by a number of personal injury specialists, that the way in which Dr Rashid runs his private medico-legal practice was not uncommon and the impact that would have on any of the alleged reasonable grounds for arrest or, indeed, its necessity. This was also confirmed by DI Taylor in oral testimony as was the fact that the police had omitted to disclose this in trial documents.

– The refusal of the police to call the arresting officer to give evidence of what he considered the reasonable grounds to be. Or for him to provide a witness statement when at the material time he was working, as a public servant, and for the police watchdog no less, in very close proximity to WYP HQ.

– The failure to preserve, or disclose, one single document where the reasonable grounds for arresting Dr Rashid could be expected to be contemporaneously, and expressly, recorded.

– The alleged failure to apply for an arrest warrant for Dr Rashid at the same time that they applied for a search warrant [In earlier preliminary hearings the police had told the court that there was no arrest warrant, a position they appeared to resile from at the final hearing].

– The failure of the police to produce evidence they seized, showing block appointments, appointment duration, fee charged, standard of reports, payments made and to whom, by other doctors. Especially, those in claims that were ultimately proved to be fraudulent.

– The fact that it is common ground that Dr Rashid never reported on any of the numerous proven fraudulent claims, or the fact that the police cannot prove and refused to disclose, any evidence that could even form a basis to say Dr Rashid had actually reported on a claim even suspected of being fraudulent.

– All the transcripts of Dr Rashid’s audio tapes, taken during patient consultations, are entirely consistent with his subsequent reports. The judge might have anxiously considered whether tape recording these interactions was consistent with alleged wrongdoing. If he did, it was omitted from his verdict.

– The fact that West Yorkshire Police knew pre-arrest that a number of other doctors actually reported on numerous proven fraudulent claims, and at least one of those doctors reported on all 14 fraudulent claimants in a completely fabricated ‘accident’ wherein all were said to have been in the same mini-bus, yet did not suspect that doctor of complicity with those fraudulent claims.

– There is no reference to the use of scripts by personal injury claimants or the fact that the police offered a ludicrous explanation for their absence from the trial bundle.

– The lawfulness of alleged reasonable grounds for arrest to be determined on a communal basis between a team of officers against the alleged reasonable grounds having to be held and believed by the actual arresting officer alone.

– Assuming there were reasonable grounds to suspect Dr Rashid of the stipulated offence, the law requires the police to also prove it was ‘necessary’ to effect an arrest. They already had search warrants for all Dr Rashid’s premises (obviating the need to arrest him to invoke powers of search). DI Taylor’s evidence in court was  that he had no reason to suspect Dr. Rashid would not co-operate with them and would have voluntarily attended for questioning. The priority, he said, was obtaining access to his mobile phone.

– The failure by the police to put even one specific allegation to Dr Rashid during 35 hours of interview over a five month period subsequent to the arrest.

– The immediate revelation, within six hours in fact, to the GMC and local Primary Care Trust of the fact that Dr Rashid had been arrested, the grotesque exaggeration of the alleged offences for which he was arrested and the avoidance of required protocol by DC Lunn, and his supervisor DI Taylor, and the circumventing of the WYP Force Disclosure Unit, who would normally undertake such sensitive matters involving regulated professionals. [The extraordinary and unauthorised missives from DC Lunn asserted to the PCT the commission of very serious offences as fact, even before one question had been put to Dr Rashid in interview. They were never, subsequently, corrected].

– The police repeatedly failed to identify any actual fraudulent claim or even suspected fraudulent claim, that Dr Rashid was even involved in.

– None of the medico-legal practitioners who were proved to have reported on fraudulent claims within Operation Thatcham, or indeed on a wider view, were arrested. This included Dr Ayoub whom had reported on the ‘headline’ case in that investigation, a bogus mini-bus crash that resulted in 14 fraudulent claims.

Other mistakes, ambiguities, under- or over-statements in the judgment include:

– No mention of the number of officers attending at Dr Rashid’s arrest (16) or its timing (6.15am).

– Dr Rashid’s release from bail in June 2013 came after a review of their original decision not to charge by a more senior lawyer, requested by the police, not after ‘a review of the evidence’.

– The false, improper and malicious notification to the GMC by DC Lunn is simply noted by the judge as ‘in the course of the investigation WYP notified the GMC’

– The judgment is silent on the point that Dr Rashid’s suspension was quashed by the High Court in September, 2012 after a senior judge presiding in that review, HHJ Mark Gosnell, had observed that ‘the police evidence against him was sparse’. Evidence gathered and put to the court by DI Taylor.

– Judgment records that the Insurance Fraud Bureau ‘assisted with’ Operation Thatcham which is a position from which their press office resiled when asked.

– The judgment asserts that one of the ‘crash for cash’ organisers, Nadeem Khaled, was a Director of Advanced Claims (UK) Ltd. That was not heard in evidence and, in any event, has no grounding in fact – as a simple check at Companies House reveals.

– The judgment repeatedly refers to Concept Accident Management Ltd as ‘Concept Claims’. It also asserts that Khaled was ‘replaced as a director’. It is a matter of public record that he never was an officer of any description in that company.

– A Lamborghini car leased from a finance company in Portsmouth was described as being ‘of dubious provenance’. It was the driver about which there were police and Ministry of Justice concerns, not the vehicle.

– The driver of that vehicle, Fouad El Habbal, was said in the judgment to be 19 or 20 years old. It is a matter of public record that he was 21 years old at the time of his arrest (born May 1990).

– The judge describes the prestigious 4 star Cedar Court Hotel as ‘a budget hotel’.

– The judgment states that CPS lawyer, Julian Briggs, ‘was present on earlier occasions when the team had met’. That, put shortly, was not the evidence of DI Taylor.

– The judgment makes no mention of DI Taylor’s unequivocal evidence that ‘the policy log was compromised‘ by the lack of time, date, entry identification (usually by author’s initials) and its remoteness from police systems.

– A passage in the judgment concerning how the nefarious activities of DC Lunn first came to the attention of senior officers also falls into error. The judge’s acceptance of DI Taylor’s account of events, against the factual matrix and another of the detective’s losses of memory is concerning to say the least.

– The judgment refers to pre-arrest interview notes (that were, strangely, undated and with no author identified): Because they refer to events that only came into the knowledge of the police many months later, they were plainly post-arrest notes.

– During the proceedings the judge referred to a payment by Dr Rashid to a solicitor as a “backhander” (in Yorkshire, and probably elsewhere, a term for a bribe). That is not how the GMC characterised it during their lengthy investigation into Dr Rashid, nor was any such suggestion, oblique or otherwise, heard in evidence from the police officers. The solicitor has never been subject of complaint, application or arrest over that payment.

– The judgment refers twice to the number of Operation Thatcham convictions as 48. That was not heard in evidence and no source is quoted. West Yorkshire Police, by way of a freedom of information request, say the number was 45.

That is a long and troubling list and readers are invited to form their own view as to what might, in the interests of fairness and balance, have been an appropriate level of care, attention and impartiality from the bench and, more crucially, might reasonably be included in the judgment of Mr Recorder Nolan, or excluded, and the impact on his decision to dismiss the claim. His almost complete absence of note-taking, throughout the trial, may have contributed to this catalogue of errors.

There are also similar misgivings from Dr Rashid and his legal team as to how the law was applied to the judge’s finding of fact. They will be dealt with more fully, in a separate article, after Mr Justice Lavender has unpicked the competing arguments and made his decision.

Mr Justice Lavender

Whatever the outcome of the this appeal by Dr Rashid, neither the police, for the manner in which they routinely conduct civil or tribunal litigation, or the judge who was, arguably, prepared to overlook too many of their shortcomings and sharp practices, emerge with credit. The latter, in the twilight of what appears to have been a distinguished legal career, might well, in future, take a leaf out of the book of the Recorder of Bradford, HHJ Jonathan Hall QC, when presiding over court proceedings. An exemplar in how to conduct any hearing.

UPDATE: Ben Nolan QC is presently the subject of an ongoing complaint concerning an offensive post he made on the social media platform, Twitter. Read more here.

Page last updated: Wednesday 13th May, 2020 at 0900 hours

Photo Credits: Twitter (@F10BENQC); Serle Court Chambers

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 2015-2020. 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.

 

 

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 opened. 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 was listed for twelve court days with some highly-charged evidence likely to be heard from the witness box. Cross-examination was set 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).

In the event, the hearing was adjourned and the parties agreed to a judicial mediation process. That process has now broken down and, in the interim period, Sgt Saeed has issued two further claims against his employer alleging victimisation and disability discrimination.

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

In an extraordinary development, the full extent of a dispute between those two barristers was revealed at a case management hearing held on 14th December, 2020. Both have now recused themselves from the claim. Full details here.

As many have done before him, Sgt 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 Sgt 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 corroborated 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 transrcipt 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 beleaguered 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.

Screen Shot 2020-01-13 at 12.47.57

Angela Williams is the force lead on Diversity and Equality. Her Twitter account has now been deleted.

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.

Screen Shot 2020-01-15 at 09.04.27

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.

Screen Shot 2020-01-17 at 13.06.44
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 09250hrs on Friday 18th December, 2020.

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.

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.