Sold down the river

In October, 2020 I wrote a short piece that featured, yet again, the ‘cover-up’ culture that pervades every part of North Yorkshire Police, writes Neil Wilby.

There are over thirty other such articles on this website. It is a rich seam for any curious journalist to mine. That, apparently, excludes those working for the tame local and regional media. Notably, the York Press, BBC Radio York, the Yorkshire Post and the Northern Echo. Their business models seem to exclude these type of investigations, and reporting, in favour of a largely unctuous public relations service to the police. That, of course, is entirely a matter for those publishers and broadcasters – and their readers or listeners. They know them best.

But it is an inalienable factor in why this police force continually fails the public it should serve, particularly in high profile investigations involving loss of life, and then executes cover-up after cover-up, safe in the knowledge that they face little or no meaningful challenge from the mainstream media.

The October article had, at its heart, three bereaved families. All losing family members in two of the rivers that surround York, the Foss and the Ouse. Apart from the deep distress caused by the usual defective NYP investigations into those deaths, two of the families suffered further harm at the hands of a police control room CCTV operator when he made inappropriate, insensitive remarks in the comments section of the York Press page on Facebook. His post was below an article concerning the death of Steven O’Neill, a 29 year old man visiting the city to see his brother, who was stationed at the nearby Imphal Barracks.

As a follow-up to the article, a request for further disclosure, by way of the Freedom of Information Act, was made to NYP on 1st December, 2020. Plainly expressed and uncontroversial:

“In October, 2020 I wrote and published this article:

https://neilwilby.com/2020/10/26/we-investigated-ourselves-and-found-nothing-wrong/

Within it is referenced an incident involving offensive posting on a newspaper website by a NYP Force Control Room operative.

1. Was the operative served with a Police Regulations notice?

2. If so, what were the Standards of Professional Behaviour allegedly breached?

3. If so, in what form did the disposal of such proceedings take?

4. Was the subject operative an authorised contributor to NYP social media account output (i) at the material time (ii) currently?”

It was also carefully framed so that no living person could be identified from it, thus triggering any of the section 40 exemptions under the Act.

As is usual, the request was stonewalled by the police, ignoring their lawful duty to respond within 20 working days, and the right to an Internal Review (a complaint, in effect, under section 45 of the Act) was duly exercised:

“I am writing to request an internal review of North Yorkshire Police’s handling of my FOI request ‘Rivers deaths in York’.

The grounds for complaint are:

1. You have breached section 10 of the Act.

2. You have breached section 17 of the Act.

3. To the extent that, in my respectful submission,

(i) the information is being deliberately withheld by NYP to avoid further reputational damage. I hold an account from one of the bereaved mothers that heavily supports that proposition.

(ii) the information is being deliberately withheld as part of a wider, and long-running, campaign of harassment, conducted by the chief constable and at least one other very senior officer against a journalist following his vocation. A simple reference to other requests made by this applicant to NYP, via the WhatDoTheyKnow website, lend significant weight to that assertion.

All rights of remedy, either by way of section 77 of the Act, or by civil proceedings are, accordingly and herewith, reserved.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r…

It reflected the permanently attritional relationship between journalist and successive chief constables, Tim Madgwick, Dave Jones and Lisa Winward, all of whom have deeply resented the level of scrutiny that an experienced and resourceful investigator brings to their door.

Jones during his ill-starred tenure was defeated twice in court, having wasted over £30,000 of public money on hopelessly misconceived defences of proceedings brought by that same journalist in county court and at information rights tribunal.

The bereaved mother referenced in the complaint is Sharron Scott, the mother of Steven O’Neill.

That review request was acknowledged, and recorded, on 4th January, 2021 by Amie McNairn, a Legal Officer (Civil Disclosure) within North Yorkshire Police.

On 30th January, 2021, having failed to meet the discretionary requirement under section 45 of FOIA, but a statutory requirement under section 39A of the Police Act, to answer that complaint, NYP were informed thus:

“A complaint, by way of Sections 50 and 77 of the Act, is being prepared for submission to the Information Commissioner’s Office [ICO]. They will, no doubt, be in touch with you in due course”.

North Yorkshire Police was belatedly placed in special measures by the ICO last year (read here), after many well-evidenced requests from this quarter to do just that. Dating back to 2016, when very serious concerns were first raised over the routinely lawless approach to their statutory responsibilities. They were addressed more pointedly the following year (read more here).

The same police force that gets into a hot sweat, and rushes to the local press, if a woman drives to meet her sister in Whitby for a fish and chips meal during ‘lockdown’.

On 9th March, 2021, and before the hopelessly ineffective, inefficient Information Commissioner had swung into action, a response to the original request was belatedly provided by Caroline Williams, the Civil Disclosure Team Leader.

“I write in connection with your request for information which was received by North Yorkshire Police on 1st December 2020.  Please accept our apologies for the delay in providing you with a response. 


Decision 
Q1-4. Your request for information has now been considered and I can neither confirm nor deny that any information is held, under Section 40(5)(b) – Personal Information. 

Disclosure under the Freedom of Information Act 2000 (the Act) is to the world, therefore Section 40(5)(b) applies as to either confirm or deny that any information is held would disclose that individuals had, or had not, been subjected to such notices, which itself is personal information and 
therefore exempt under Section 40(5) of the Act. 
 
North Yorkshire Police has determined that in all the circumstances of the case the public interest in maintaining the exclusion of the duty to neither confirm nor deny outweighs the public interest in confirming or denying whether or not information is held. 
 
Pursuant to Section 17(4) of the Act this letter also acts as a refusal notice in relation to the duty to confirm or deny. “

To the wider world there might be mild surprise over the fact that, in a request seeking no personal information that would identify a living person, the police would deploy an exemption that relies on such an application. There might be even more surprise over the public interest test conducted by NYP where not disclosing a disciplinary outcome against an un-named individual, behaving unethically and unprofessionally, trumps the distress caused to bereaved families.

To this journalist the response comes as no surprise at all: The Civil Disclosure Unit has a lengthy track record of pre-formed decisions not to disclose information, with poorly conceived exemptions formulated around such finalisations.

NYP’s disclosure misdemeanours are not limited to freedom of information requests, of course. In one case, an outraged appeal court judge, Lord Chief Justice Thomas, humiliated Dave Jones, over persistent and mendacious failings, in a manner very rarely seen, before or since, in a courtroom. The force’s conduct was described as ‘reprehensible’ and ‘the worst the trial judge, in 50 years as an advocate and senior judge, had ever seen’. Neither Jones, nor the Chief Crown Prosecutor for Yorkshire and Humber, faced any sanction as a result of the Court of Appeal’s blistering condemnation (read full judgment here). It was head down, hope no-one is looking, particularly the local and regional media, and business as usual.

Very many others complain of similar failings, either via information rights requests (freedom of information or data subject access); in civil proceedings or in criminal trials. As a journalist, court reporter and occasional litigant in person, these are matters upon which close quarter, highly informed commentary can be made.

North Yorkshire Police is, very evidently, a force with a serious culture problem, dating back decades, and it gets worse every year, seemingly, not better. For the simple reason there is no-one that holds them to account.

In the present information request, this is the challenge presented to NYP in the form of a second Internal Review request dated 14th March, 2021 (the first remains unanswered):
 

“I am writing to request a second internal review of North Yorkshire Police’s handling of my Freedom of Information Act request ‘Rivers deaths in York’.

The grounds for complaint are as follows:

1. To almost any independent observer, with a working knowledge of the Act, this has the appearance another pre-formed finalisation by NYP’s hierarchy not to disclose information to this particular journalist, whom has exposed their persistent, mendacious lawlessness and failing after failing in the running of their force. A significant number, it must be said, via FOIA requests. As such, the decision maker(s) has/have breached the fundamental principles of requests being both applicant and motive blind. 

2. More crucially, relying on section 45(b) as an exemption to frustrate disclosure is, in my respectful submission, both wholly misconceived and, very arguably, mischievous.

In so doing, again in my respectful submission, NYP has breached both section 17 and section 77 of the Act.

3. To the extent that;

(i) it is part of the wider, and long-running, campaign of harassment, referred to in the first internal review request against a journalist following his vocation as “social watchdog” (a term coined by Upper Tier Tribunal judge, Nicholas Wikeley). Again, the reviewer is invited to reference other requests made by this applicant to NYP, via the WhatDoTheyKnow website, that lend significant weight to that assertion.

(ii) A number of Code of Ethics breaches are self-evident.

4. The reviewer’s attention is drawn to the fact that, in 2018, I succeeded in First Tier Tribunal proceedings (EA/2017/0076) against the NYP’s Civil Disclosure Unit in a challenge to a section 45(b) exemption. It may not be entirely a coincidence, but it was the very same disclosure officer (Caroline Williams) who signed off the finalisation of that request. 

5. Early in those proceedings it was established, beyond any doubt, that section 45(b) can only be relied upon by a public authority (or police force) if a distinction is made between section 40 (5) (b) (i) and 40 (5) (b) (ii). No such distinction is made here. Guidance issued by the Information Commissioner’s Office is very clear: In all cases, a public authority needs to consider the details of the exemption. In any refusal notice under the Act it is necessary to explain exactly which subsection is engaged, and why.

https://ico.org.uk/media/for-organisatio…

6. It should be self-evident to the reviewer that Parts 1. to 3. of the request are, effectively, consecutive and, as such, conjoined by the same narrow issue. Part 4. of the request is, however, a discrete matter and should have been subject to separate analysis by the decision maker. It plainly wasn’t. 

7. Taken together, paras 5. and 6 above strongly support the proposition, advanced at para 1 above, of a pre-formed decision, probably rushed and forced onto the disclosure officer by her superiors, and generic, rather than fact specific, reasoning is attached to it. 

8. Further, and in any event, the disclosure requested is not personal information. The request was carefully framed to circumvent that possibility. Parts 1, 2 and 3 are of the same class routinely posted on the NYP website regarding misconduct outcomes: https://northyorkshire.police.uk/access-…

9. The reviewer is also invited to consider Foster v IC (EA/2013/0176) in assessing whether the ‘neither confirm nor deny’ can sustain.

https://www.casemine.com/judgement/uk/5b35bf872c94e01ed25501a7

10. There is no prejudice to the rights and freedoms or legitimate interests of an unidentified officer in disclosing the requested information There are also no Article 8 Convention rights in issue..

10. The public interest test is deficient insofar as it raises no points of argument specific to the requested disclosure at either at Parts 1,2 and 3 or, separately, point 4. Indeed, the reviewer may well find that no such test was carried out.

11. The presumption at the outset of any such test is to disclose the information, a point not in evidence in this finalisation. Further, it is respectfully submitted that there can be no sustainable points placed in the balance that outweigh the interests of bereaved families knowing the truth and that miscreant officers have been appropriately dealt with in accordance with the applicable statutory framework. The conduct complained of was discreditable conduct, not a matter to be treated so lightly as NYP appear to have done.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r…

The internal review request was acknowledged and recorded by the Civil Disclosure Unit on 16th March, 2021.

This is another case that has Tribunal, and grotesque waste of public funds, written all over it. North Yorkshire Police did not, according to well placed sources, subject their errant control room officer to any meaningful disciplinary process and, having fobbed off Sharron Scott by saying ‘he has been spoken to’ they do not want to admit the fact that due process, an investigation and a published outcome has been subverted.

Eventually, it a point they will have to concede before a judge but, in present circumstances, that may be another three years down the road. By which time, the force will have suffered considerably more reputational damage than dealing with the matter appropriately in the first place and some, if not all, of those responsible for this farrago will, of course, have retired or moved on.

Regrettably, that is the modus operandum of the modern police service, not limited to North Yorkshire, it must be said: Admit nothing and use every means possible, fair or foul, regardless of cost to the public purse, to wear down the challenge. However compelling that may be.

Page last updated at 1045hrs on Wednesday 17th 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.

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© 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.

We investigated ourselves and found nothing wrong

During this course of this week, details have emerged of three more sub-optimal North Yorkshire Police investigations. These add to a shocking catalogue over the past 10 years or so (read more here).

Not burglaries or car break-ins, but deaths in two different rivers in the county, 12 years apart. Denying closure for bereaved families over periods far longer than necessary.

This followed hot on the heels of the shocking news that NYP had misled the tame local and regional media by asserting that a promised review into the depressingly poor investigation of the murder of Diana Garbutt, in 2010, never took place (read more here).

In April 2007, John David Clarke died in the River Foss near Towthorpe, by a strange coincidence a village with which convicted murderer Robin Garbutt, former husband of Diana, has strong family connections. No murder investigation appeared to take place at the time.

Pathology suggested that the circumstances were consistent with drowning and found that Mr Clarke had been heavily intoxicated at the time of death.

At the inquest, also in 2007, the coroner ruled that he had died by drowning, with alcohol intoxication a contributing factor. The deceased had an alcohol addiction and was being treated for depression. On open verdict was recorded.

But the police, led by senior investigating officer Lewis Raw, failed to consider the likelihood of a man in such a condition walking well over four miles from York to Haxby – probably taking around two hours to do so – before accidentally, or deliberately, drowning in the river.

Other clues that this was not an accidental death did not appear to be investigated with the necessary rigour:

Messages recovered from Mr Clarke’s mobile phone card SIM card confirmed that the man now convicted of his murder, ex-Tesco worker, David Roustoby, was the last person to see him alive.

His partner, Sharron Houlden, had reported her car stolen to the police two days after the murder, and it was found burned out a short distance away.

According to police reports, Mr Clarke had made a complaint in November 2006, saying Roustoby had allegedly discharged a firearm and threatened to kill him. The latter was arrested, but never charged.

In the end, it took a confession, filmed at a friend’s house in August 2019, for Roustoby to be finally arrested, interviewed, charged and face trial. He thought he had, literally, got away with murder after drugging and then strangling David Clarke with a tie because he thought ‘he was a nonce’.

Police, during a renewed investigation codenamed Operation Jet, found no evidence to suggest that the deceased had such character frailties and prosecutor, Richard Wright QC, told the jury: “Claiming David Clarke was a sex offender was a wicked self-justification of the terrible thing [Roustoby] had done”.

“David Clarke had no convictions of sex offences and no allegations of any type had been made.”

Mr Wright also told them that it was possible Roustoby had not “entirely killed” Mr Clarke when strangling him and the victim was, possibly, still breathing when he was thrown in the river.

When confronted with his video confession, Roustoby claimed that he was trying to impress his friends; that it was all fantasy. He was jailed for life, with a minimum term of 19 years to be served.

Miss Houlden was handed a sentence of two years and eight months imprisonment (less time already spent in custody) after pleading guilty to assisting an offender at an earlier hearing in September, 2020. 

Another curiosity is that Supt Raw was also the senior investigating in the disastrous Garbutt murder probe codenamed Operation Nardoo (read more here). A recent freedom of information request revealed that a promised review of that ‘comedy of errors’ never took place. Moreover, in recent correspondence with the chief constable, it is clear that the force is still refusing to re-open the case and very uncomfortable over the renewed scrutiny.

19 year old Sonny Ferry, brought up in Rutland but working as a building labourer in the city, also died in the River Foss in York in April, 2019. He had been on a night out with friends but became separated from the group in a local nightclub. It later emerged his bank card had been used several times on the day he was found and police knew it was missing when the body was recovered.

Inspector Lee Partridge said, at the time, it was not known whether the teenager’s wallet had been lost or stolen before he fell in the river or was fished out by person(s) unknown.

There were attempts to use Sonny’s bank card at a Tesco supermarket, two petrol stations and two McDonald’s outlets in the city between 04:22 and 06:10 BST on 14 April, although some transactions were declined.

The police did not tell Sonny’s family about the missing wallet until two months later but, by that time it was too late to check relevant CCTV footage in the areas where he had been.

A 45-year-old homeless man was arrested on suspicion of theft, in relation to the missing velcro-strapped wallet, but was released without charge.

His parents, Stephen and Kate Ferry, submitted a formal complaint to NYP after the initial investigation was closed just one day after Sonny’s death.

The perennially disgraced Independent Office for Police Conduct (IOPC) was asked to investigate the circumstances leading up to his death.

However, the ‘police watchdog’ said evidence did not suggest the officers breached standards of professional behaviour. A decision that may not sustain before a coroner’s or civil court.

An inquest will now take place on a date yet to be determined.

A third victim of what appears to be sub-optimal NYP contact died in the River Ouse in York city centre less than a week later. Sharron Scott, the mother of the dead man said her 29 year old son Steven O’Neill, who was from The Wirral area of Merseyside, was on a night out with his brother, a soldier based at Imphal Barracks in the Fulford Cross area of the city, when the tragedy occurred.

Ms Scott said she failed to understand how her son ended up in the river because he could not swim. She was dissatisfied with the explanations of the police and made a formal complaint to the IOPC.

North Yorkshire Police said, at the time, they were alerted by CCTV operators to suspicious activity on Kings Staith in the early hours of a Saturday morning. Upon arrival, a man ran off and a short time later entered the water. A rescue operation was mounted but he was dead when his body was recovered from the river. All deaths where there has been police contact are required to be mandatorily referred to the IOPC for what is described as an ‘independent investigation’.

An IOPC investigator subsequently wrote to Ms Scott, to say that the evidence gathered does not suggest officers breached the police service’s Standards of Professional Behaviour. It is unclear as to who gathered what evidence.

He finalised his assessment of the status of officers involved in the incident preceding Steven’s death, after ‘carefully’ examining ‘all evidence’ including bodycam and CCTV footage, radio transmission recordings and witness statements (much more likely to be informal witness accounts than formal statements). Three visits to the scene and an inspection of life saving equipment were also made by the IOPC, they say, although it is not made clear who made these visits and for what specific purpose.

He said: “My assessment of all the evidence gathered to date in the investigation does not suggest the officers involved with Mr Scott may have breached the Police Standards of Professional Behaviour or acted in a manner that would justify disciplinary proceedings.”

Ms Scott said she was “appalled” by the investigator’s conclusions, and was planning to take civil action against North Yorkshire Police if the decision was upheld.

She said she did not believe sufficient care was taken for her son’s safety when he ran along the riverside – or sufficient action was taken by officers to save his life after he had entered the water.

The IOPC claim that CCTV, footage from body worn cameras, witness statements and police radio transmissions were all analysed, suggests that none was seized by the watchdog in the ‘golden hours’ after the death of Steven. They would have viewed, presumably, what the police wanted them to see. Over the years, their record on such analyses, in a number of other similar death following police contact cases, does not, regrettably, bear a great deal of scrutiny.

Neither does the record of the genuinely appalling record, over a long period of time, of the Professional Standards Department of North Yorkshire Police in covering up wrongdoing by their colleagues. Very strongly aided by a complete lack of oversight, or appropriately rigorous scrutiny, by any or all of the disgraced Police and Crime Commissioner, Julia Mulligan, about whom much is written elesewhere on this website; the aforementioned IPCC/IOPC and Her Majesty’s Inspector of Constabulary.

In the month following the deaths of Steven and Sonny, NYP was forced to apologise to both families for alarm and distress caused when a CCTV operator posted an “inappropriate, insensitive” comment on the York Press Facebook page about drunks putting themselves in danger close to the rivers in York.

The force says it “wholeheartedly acknowledges” that the comments were made without any regards for families grieving the loss of a loved one.

“The member of staff who made the comments will be dealt with appropriately,” the force said, via their press office. “We apologise for the alarm and distress caused”.

The CCTV operator wrote: “Well, I normally keep my opinions on police matters to myself but I work in the police control room and sit in front of the CCTV screens.

“What doesn’t get reported are the number of drunks that put themselves in these dangers.

“Thursday night shift we responded to four persons too close, dangling legs, trying to climb river ladders or walk across the wall across Ouse bridge.

“One idiot jumped in and managed to climb out. That’s four individuals in danger in just one shift. It’s the person’s (drunken and misguided) choices, not the river’s fault.”

Sharron Scott said the comments were posted after The Press had reported on the death in the Ouse of her son. The link being, of course, that he drowned after running away from police officers, who had been alerted by CCTV operators to suspicious activity in the area of King’s Staith.

Ms Scott said that specific role of CCTV operators in the chain of events which led to Steven’s death had made the comments by one of those operators particularly concerning.

She added that the comment had sparked a series of other derogatory, speculative and prejudiced comments about her son from other people on Facebook, suggesting for example that he was clearly a drug dealer as he came from Merseyside.

“This has been incredibly upsetting and distressing not just for me but also for the wider family who are grieving for Steven, and also for the families of other people who have drowned in York’s rivers,”

The operator’s comment was deleted after a complaint to the police, but the comments by other people which it had prompted had remained.

“I personally would like to see the operator sacked,” said Ms Scott.

Ms Scott has previously made clear that Steven was a hard-working man with no criminal record and she had no inkling of what suspicious activity was referred to by police.

Kate Ferry told the same newspaper: “Speaking with the full support of my immediate family, we feel that had the operator previously had the honour of meeting the two members of the York Rescue Boat, as did myself and my husband, and of witnessing the raw grief on the faces of the unpaid volunteers whilst they told us of their first-hand experiences with individuals of all ages who have sometimes drunk a little too much alcohol, in some cases have drunk far too much alcohol and in further cases have drunk no alcohol at all but have nevertheless perished in the rivers of York, they would never have made those comments.

“Ultimately we feel that what is needed at this time is empathy, respect, courage and honesty. We feel we all need to be honest with ourselves. Haven’t we all said something naively and then wished we hadn’t?”

There is no indication on the NYP website that the CCTV operator faced any misconduct proceedings and it is, therefore, unclear what sanctions, if any, were imposed.

The force has chosen to break the law, yet again, by failing to simple questions put to them by way of the Freedom of Information Act (read more here).

Page last updated at 0945hrs on Saturday 2nd January, 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: Yorkshire Live

© 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.