Inquest delayed over police anonymity arguments

Andrew Stephen Hall, a black man from Huddersfield, died in the town’s Royal Infirmary on 13th September, 2016. He was 43 years old and his admission to hospital followed an episode in West Yorkshire Police (WYP) custody at the local police station and an earlier visit to the Accident and Emergency Department (A & E) of the same hospital.

From documents filed at the High Court, these are the circumstances noted in submissions and are not the subject of factual dispute by any party to those proceedings:

In the early hours of that same September day, Mr Hall was found collapsed at home by his partner, Natalie Dyer. He had taken prescription medication and drunk alcohol. When paramedics attended, he was unresponsive and was taken to A & E where he received further medication and his condition appeared to improve.

He became agitated, however, and was alleged to have slapped a nurse. Ms Dyer says in a witness statement that this occurred because he was disorientated, frustrated and panicking. As a result of the incident, he was removed from the hospital to the nearby police station in the town centre, arriving at about 7.30 am.

At 8.35 am, Mr Hall was taken to a custody area and his handcuffs were removed. He told officers that he was feeling unwell and was going to be sick. He was taken to a cell where he could vomit. He was assessed by a male custody nurse at around 10am and, thereafter, taken back towards the cell by three officers. In transit, he freed one of his arms and grabbed a barred gate. During the ensuing struggle, at least one of the officers struck Mr Hall multiple times. He may have struck back. By 10.18 am the officers had restrained him and returned him to his cell. The custody nurse observed the later stages of what happened to Mr Hall during the altercation and he was of the view that the detained person needed to be taken back to hospital.

Paramedics attended the police station at 10.42 am and Mr Hall was returned to hospital in handcuffs and leg restraints. He was sedated, medicated and arrangements were made for him to have a computerised tomography (CT) scan. Whilst waiting for this procedure his condition deteriorated and clinical staff could not feel a pulse. Cardiopulmonary resuscitation (commonly termed as CPR) was performed, but he was declared dead at 12.44 pm.

Andrew’s death, therefore, occurred shortly after he had been in police custody and restrained. Because of the prevalence of such incidents across the wider police service, dating back many years, there is significant public interest in an inquest into the death of a black man in these circumstances. The recent surge of publicity surrounding the Black Lives Matter campaign is ample demonstration of that.

Sixteen police officers are expected give evidence at the delayed inquest, to be held later this year. Anonymity was originally sought for fifteen of them, a number, seemingly, reduced to thirteen by the time the matter reached the appeal court.

Applications for anonymity

In March 2019, the WYP chief constable made an application to Her Majesty’s Coroner for West Yorkshire (Western) for anonymity for three of his officers and, also, for them to give evidence from behind screens. The ranks of those officers are, as yet, undisclosed.

A similar application followed from the Police Federation, on behalf of twelve of their members (officers holding the rank of constable up to chief inspector).

The application for anonymity was not contested by Mr Hall’s family and an Order was made, by the coroner, Oliver Longstaff, together with Orders that the CCTV footage featuring the officers will be modified so their names cannot be heard and their faces will be pixelated. The coroner, jury and legal representatives of the family will have access to unedited copies of the CCTV.

The applications for police officer evidence to be given from behind screens were, however, resisted by the bereaved family. The coroner heard these applications on 6th June 2019. He had two statements from WYP’s Inspector Danny Rotchell, together with his risk assessment; open statements from three officers and closed statements from other officers. The applications were grounded on the premise that if officers were seen, they might be identified and if so, they might be identified either by, or to, Andrew Hall’s brother, Qassim. He has a lengthy criminal record, is well known to the police in Huddersfield and records show that he has a history of making threats.

Qassim Hall was not one of the family members involved in the applications before the coroner, the subsequent judicial review and the consequent appeal to the Court of Appeal. He has not, so far, attended any of the hearings.

The named claimant (or respondent) in those proceedings is Andrew Hall’s partner (and the mother of one of his children). She was, in effect, acting with, and on behalf of, six other members of his family including his mother (Pamela Hall), father (Franklyn Lindor), three siblings (Tracey Nash, Daniel Priestley and Bianca Priestley) and an adult son (Joseph Hall), collectively referred to by the various courts as ‘the family’.

The coroner’s ruling

The coroner ruled, in the event, that the police officers giving evidence would be screened from the public (including accredited members of the press) and the family, but be fully visible to himself, the jury and the legal representatives of all the interested parties.

He stated that the wealth of competing legal authorities presented to him by counsel for all those parties demonstrated that, first and foremost, applications of this nature are ‘immensely fact-sensitive’.

Instinctively, the coroner said, the proposition that the family of the deceased who has died, in circumstances that call into question the State’s discharge of its obligations under Article 2 of the European Conventions on Human Rights [ECHR], should not see the agents of the state implicated in that death ‘offends what can be appropriately described as natural justice, in the sense of the fair and impartial application of law and procedure to all parties to a particular legal process.’

‘That instinct was all the stronger where the application was not based on any sufficient evidence or intelligence reflecting adversely on the family members most likely to be affected,’ adding that there was no basis upon which the Rule 18 power (under the Coroners (Inquests) Rules, 2013) could be exercised other than in respect of the perceived danger said to be posed to officers by Qassim Hall.

The coroner found that proposition credible, referring to Hall’s convictions for violence and history of making threats, including to kill. He accepted that Qassim blamed the police for Andrew Hall’s death and that the police officers had a genuine fear that if identified it would create a risk of harm to them, or their families, from the actions of Qassim Hall. He further accepted that in the case of some of the officers, these fears were affecting their health, and will continue to do so, unless steps are taken to minimise the risk. Hugh Davies QC and Brian Dean, of counsel, had both submitted, in terms, on behalf of the chief constable and Police Federation respectively, that the officers’ fears were not irrational but could be characterised as subjective fears that were objectively justified.

The coroner accepted the submission of Leslie Thomas QC, on behalf of the family, as to the presumption that evidence would not be given from behind a screen and said that Coroner’s Rules permits a departure from that presumption if he determined that the use of screens was likely to improve the quality of the evidence of the officers, or allow the inquest to ‘proceed more expeditiously’. (The sharp-eyed may have noted that the Rule, as drafted, refers to expedience not expedition).

He went on to conclude that permitting the officers to give evidence from behind a screen would be likely to improve the quality of their evidence overall. Witnesses who are fearful for their safety, or the safety of their families, in the event that they are identified, were more likely to be straightforward and forthcoming in their evidence if confident they will not be identified. He had considered whether the use of screens would impede the questioning of any witness and concluded that the retention by the family of a leading QC obviated the risk of any such impediment.

The coroner emphasised that his starting point was the interests of justice, generally, and of anyone concerned in the legal process ‘are best served when those charged with making findings of fact, and reaching conclusions based upon those findings, are able to do so on the basis of the best evidence’ and that, in this case, the best evidence will be given if the police officers give evidence from behind screens.

He confirmed that his decision cast no doubt, or aspersion at all, on the good character of the bereaved family, but his decision was based upon what he perceived as the genuine risk posed by Qassim Hall to the officers and their families.

Delay to inquest

The inquest touching the death of Andrew Hall was listed to commence on 4th November, 2019 at Bradford Law Courts.

That date was vacated as a result of the extant legal proceedings challenging the coroner’s decision and, subsequently, the decision of the High Court in respect of that ruling.

It will now be heard in April 2021, if and when the effects of the virus crisis are mitigated. Multi-handed hearings, before a jury and with large numbers of court staff, lawyers, security, witnesses, reporters and public to be accommodated, pose their own set of problems.

The next hearing will take place on 19th February, 2021. It is listed as a pre-inquest review before Mr Longstaff. Presumably, one of the issues to be resolved is a date for the final hearing of the inquest.

The judicial review application by the Hall family

On 11th October, 2019, Mrs Justice Jefford sitting in the Administrative Court in Leeds heard an application from Mr Hall’s family opposing the coroner’s directions in relation to the screens.

It is worth setting out the grounds in full as they articulate some of the recurring concerns of bereaved families, across a broader portfolio of deaths following police contact, particularly as anonymity orders and screening of police officer witnesses is now an increasing trend:

Ground 1: “The coroner misdirected himself, in that he failed to recognise (i) the fundamental importance of open justice and to give it great weight; (ii) the particular importance of open justice in this inquest, as it involves a controversial death in police custody of a black man following police restraint; (iii) that his decision interfered with the rights of the press within Article 10 of ECHR; (iv) that screening is only permitted in exceptional circumstances; and (v) that in this context screening, particularly screening of all factual police witnesses, is a serious incursion into open justice.”
Ground 2: “The decision to screen the 16 officers from the family and public was a greater intrusion into open justice than was strictly necessary. It follows from the coroner’s ruling that here was no rational basis for screening the witnesses from anyone other than Qassim Hall. There was a less intrusive means of achieving the aim pursued, which was to screen the witnesses from him alone.”
Ground 4: “The coroner proceeded on the basis that screening is permitted if that would improve the quality of evidence, and thereby misdirected himself.”
Ground 5: “The decision was not compatible with the procedural duty within Article 2 ECHR; was not correct as a matter of common law; or alternatively was disproportionate.”

The family was refused permission to apply for judicial review on ground 3 and, as such, it does not appear in the list above. HHJ Philip Kramer, sitting as a judge of the High Court, granted permission in respect of grounds 1,2,4 and 5.

As the hearing unfolded, grounds 1 and 4 were argued together, and the judge said it was first necessary to address the legal framework. There was no dispute that the principle of open justice is a fundamental tenet of common law, as applicable in a coroner’s court as in any other court, citing, inter alia, R (T) v West Yorkshire Senior Coroner [2017] EWCA Civ 318[2018] 2 WLR 211.

She then set out the different facets of the principle, including the ability of those present in court to see and hear the evidence being given. She stated that she did not consider it particularly helpful to frame any incursion into the principle of open justice as only allowed in exceptional circumstances. Her analysis was that: “where there is a balancing exercise to be undertaken, particular weight is to be attached to this fundamental principle and one of the consequences of attaching particular weight to that consideration is that the incursion into openness should be no more than necessary.”

The judge set out the four reasons advanced on behalf of the Hall family as to why the use of screens was a significant incursion into open justice: “(i) it undermines the effectiveness of the investigation because the public would not be prompted to bring forward further evidence; (ii) the observing of the witnesses is an important part of the investigative process (not limited to the process undertaken by the decision makers); (iii) preventing the witnesses being seen undermines public confidence in the process; (iv) not being able to see the witnesses reduces the prospect of catharsis for the family of the deceased.” She noted that no further reliance was placed on the first point but the family continued to rely on the remainder.

She further noted that being able to see a witness give evidence is an important factor in assessing demeanour and credibility. She said that, nonetheless, screening was common in criminal trials because the courts had recognised both the needs of vulnerable witnesses and innocent bystanders giving evidence in difficult circumstances – and the consequent benefit to the quality of their evidence from being made comfortable. This was not seen as undermining public confidence in the system of justice or the openness of the process. However, she added that the position being argued here was significantly different. In the case of an inquest such as this, the public interest in seeing the police officers, however they may have been involved in the events leading to the death of Mr Hall, was of a different nature and measure from the public interest in seeing a vulnerable complainant or witness give evidence – and the risk of undermining public confidence all the more obvious. She referred to the submission of Adam Straw on behalf of the Hall family that there must be such an overarching consideration because of the fundamental importance of the principle of open justice. She also noted his submission that, by following the Rules, the coroner had failed to weigh in the balance the fundamental importance of open justice.

The judge then set out why she considered it was right that the principle of open justice must always have a place in the decision making process and be given appropriate weight in the balancing exercise between potential benefits and detriments of screens and went on to say that it by no means followed that the coroner had misdirected himself in law, for two reasons she identified: Firstly, she noted the opposing arguments had been fully ventilated at the hearing, before the coroner, so it could not be said that Mr Longstaff was not aware of the matters the Hall family averred should be taken into account. Secondly, the coroner’s decision had to be read “with a degree of benevolence or pragmatism” and that the coroner must be taken to have in mind all of the arguments made by counsel, even if he did not set out each of them in detail. If he took account of the relevant factors, he could not be said to have misdirected himself in law, even if he did not articulate the legal principles in the way counsel for the Hall family would have formulated them.

In her judgment, she took the view that the coroner was entirely correct in saying the police application for screening was based upon the fears that Qassim Hall would seek to harm them and found that threat credible and the fears genuine.

She recorded the family’s view that what the coroner did was set out the competing submissions but did not then evaluate the comparative importance of the various factors or weigh them against each other. That is to say: Quality of the evidence weighed in the balance with the interests of open justice.

The judge found that his references to ‘the principles of natural justice’ were clearly in context references to ‘the principles of open justice’ and said, further, that the coroner had made clear his instinctive difficulty or discomfort with the proposition that the family would not see the witnesses implicated in Andrew Hall’s death if their evidence was given from behind screens. It was also found that the ruling in which the coroner considers all the circumstances of the case, may well be read as having inherent in it a balancing exercise in which the principle of open justice played a part.

The judge concluded in relation to grounds 1 and 4 that the coroner did misdirect himself in law and the challenge on the basis of ground 1 succeeded. The family’s position was, in those circumstances, that the judge should make her own decision about the use of screens if she considered there was only one possible outcome, but she could remit the matter back to the coroner if she thought there was a range of possible outcomes. She noted that there was no real dispute that, from the police perspective, it was the appropriate course. To deal with this issue, she considered it easiest to address what her decision would have been on grounds 2 and 5 had she not concluded that the coroner had misdirected himself.

Ground 2 involved a Wednesbury irrationality challenge, that even if the coroner did not misdirect himself, his decision was irrational essentially on the basis that less intrusive measures could have been directed, such as directions to screen the officers from Qassim Hall only, or to restrict his entry to the courtroom. It was said by the Hall family that, even if screens to protect the officers from the view of the general public was rational, it was irrational to direct screens that prevented the family members from seeing the officers give evidence.

Ground 5 was argued with ground 2 because it was similar. It was contended that the decision was neither compliant with the common law duty of fairness nor with the ECHR Article 2 procedural duty. Both grounds raising the same broad argument that the coroner’s direction was a disproportionate measure. Article 2 procedural duty requires that there be a sufficient element of public scrutiny of the investigation to secure accountability, maintain public confidence and prevent any appearance of collusion or tolerance of unlawful acts: The family must be able to participate effectively in the inquest. The judge recognised that this did not extend to the family having a right to cross-examine, or it would seem, a right to observe witnesses giving evidence, but the interest in doing so remains a factor to be taken into account.

The judge said that it was common ground that the decision as to compliance with the common law duty of fairness and/or proportionality was one for the court rather than an irrationality challenge. She said that if she considered the use of screens irrational, it would follow that she would conclude that it was not in accordance with common law principles and was a disproportionate incursion into the Article 2 procedural duty. In each instance, it was open to her to substitute her own decision, which she understood to be common ground.

The judge then set out details of Qassim Hall’s lengthy criminal record and history of making threats. It is not necessary to set out the detail of those findings, as none of the parties has sought to challenge the coroner’s finding that the threat from Qassim Hall was credible and the officers’ fears of being identified by him genuine.

Other than an alleged incident, the day after he had been told of his brother’s death, when Qassim Hall is said to have attempted to climb over the gates of Huddersfield police station (of which incident the police had no record) there was no further evidence that, in the three years since Mr Hall’s death, Qassim Hall had taken any steps to identify or threaten any of the officers. Before the coroner Hugh Davies QC, on behalf of West Yorkshire’s chief constable, had made very clear that none of the other Hall family members represented a threat to the officers or would, themselves, breach the anonymity order. What was contended was that the family members were vulnerable to forced extraction of the identity of the officers. Set against this is the fact of the family already knowing the identity of two of the officers and there was no suggestion they had disclosed that information to Qassim Hall.

The judge referred to the fact that Qassim Hall was not estranged from his family and to two incidents, one in which his mother was charged with violent disorder in 2005, whilst attempting to prevent his arrest and another when she was arrested but not charged when Qassim and his partner were under investigation for harassment. The judge described these as: “the high point of the evidence that a named family member might become engaged with Qassim Hall, out of a sense of loyalty, in steps against the officers by disclosing their identity or otherwise.”

The judge said in the ‘Discussion’ section of her judgment that the coroner made a rational judgment that the quality of the evidence of the officers was likely to be improved by screens and that the quality of the evidence must necessarily be a weighty factor but quashed the coroner’s decision to permit screens to the extent that the screens prevent the identified family members from seeing the officers give evidence. However she decided on the entirety of the evidence that the coroner’s directions as to screens should continue to apply to officers identified as ‘C’ and ‘N’. The reasons for drawing this distinction were not set out.

She concluded that the screening of all the officers from the family was not in accordance with the common law duty of fairness and was a disproportionate measure. The argument that the family would both identify the officers and breach the anonymity order, for which there was no evidence, was wholly speculative.

The appeal to the Court of Appeal by the police

The grounds of appeal of the Chief Constable are that Mrs Justice Jefford’s decision in her judicial review was wrong for the following reasons:

  1. She misdirected herself as to law
  2. She made irrational and/or inconsistent conclusions.
  3. She failed to apply the common test on facts as found.
  4. She wrongly concluded that Article 3 was not engaged and/or that, whether or not it was engaged, the only rational order was to permit defined family witnesses to see the anonymised witnesses.

As one might have expected, there was a considerable overlap between those grounds and those advanced by the Police Federation which were as follows:

  1. The judge erred in ruling that the coroner had not taken account of the principle of open justice.
  2. In reaching that conclusion and substituting her own decision, the judge made errors of law and misdirected herself.
  3. Having reached her erroneous conclusion, the judge wrongly substituted her own findings on the evidence and minimised or dismissed evidence that was uncontested. She reached conclusions that are inconsistent and unsupported by any rationale.
  4. The judge failed to rule appropriately or at all on important submissions in particular as to Article 3, failed to consider the risks to the officers’ families at all and having substituted her own views as to the (un)likelihood of disclosure by force or threat, failed to consider the risk of inadvertent disclosure.
  5. Overall the judge was wrong to find that in the case of 14 out of the 16 witnesses, the balance came down in favour of allowing the family to see the witnesses.

At the outset of his submissions on behalf of the Chief Constable, Hugh Davies QC emphasised that the course which the coroner had adopted, that the officers would be screened from the public and the family but be fully visible to the coroner, the jury and the legal representatives, and the redaction and pixelation of the CCTV footage, so far as the public and family were concerned, was entirely compliant with the Article 2 procedural obligations on the State in relation to the investigation into the death of Mr Hall.

Mr Davies QC submitted that the order for anonymity recognised that Qassim Hall posed an objective threat and an indiscriminate risk to the officers and their families. The risk assessment by Inspector Rotchell, a qualified professional, was that Qassim Hall was a threat of harm in the limited area of Huddersfield. He continues to offend and express views antithetical to the police. The assessment by Mrs Justice Jefford that, if the public were able to see the officers give evidence, there was a real risk of identification by, or to, Qassim Hall, but that the family were in a different position, would not stand scrutiny. He had a background of mental instability and there was a real risk that if the family could see the officers give evidence, Qassim Hall would learn that the family had seen the witnesses and seek to obtain information about them, with an increased risk to them of his putting pressure on them to extract that information. Contrary to the judge’s conclusion that this was “pure speculation”, it was, he said, a real risk. The judge’s conclusion was contrary to the coroner’s finding that the threat to the officers and their families from Qassim Hall was “credible”.

Although in his opening submissions to the Court of Appeal, Mr Davies QC put the case on behalf of the Chief Constable on the basis of both the common law and Articles 2 and 3 of the ECHR, during the course of the hearing he accepted that (as Leslie Thomas QC for the Hall family had correctly pointed out) the application before the coroner was in the end one of common law . Article 2 was, accordingly, not relied upon further and Mr Davies QC accepted that Article 3 had been “put on the shelf”.

Ultimately, the real complaint levelled by the Chief Constable against the judicial review judgment was in relation to the judge’s categorisation of the threat or risk as “pure speculation” which amounts to a rejection of any objective justification.

So far as concerns the correct construction of Rule 18 of the Coroner’s Rules, Mr Davies QC adopted the submissions of Jonathan Hough QC on behalf of the coroner, which are summarised below.

Mr Davies QC submitted that the reference in the coroner’s ruling to “a balancing of competing interests between the officers and the family”, in the context of the ruling as a whole, could only be to the competition between the family’s open justice expectations and the position of the officers, which was the whole point of the competing submissions. He said that whilst the judge had recognised that the ruling should not be subjected to minute dissection, that was the outcome which the judgment had produced. The judge had adopted a narrow contextual analysis of the ruling. Whilst it was accepted that the coroner had arguably not gone through a “pre-flight check list” in relation to the competing interests of open justice on the one hand and the concerns of the officers on the other, Mr Davies QC submitted that the coroner had dealt with the competing interests adequately and the judge had been wrong to substitute her own decision.

On behalf of the Police Federation, Helen Malcolm QC indicated that the only area where her submissions diverged from those of Mr Davies QC was that she contended that both Articles 2 and 3 of the ECHR were engaged fully. She submitted that the real question was not whether Article 3 was engaged as a matter of law, but how the protective duty of the state under Article 2 was to be satisfied. This concerned the balance to be struck between the state’s obligation to protect the officers and the state’s obligation to ensure that the family have access to the extent it is possible. She submitted that, contrary to the judge’s conclusion, the coroner had engaged in an appropriate balancing exercise and had given important weight to the principle of open justice in his ruling, where the reference to “natural justice” was clearly intended to be to “open justice”. The suggestion that he had not taken it into account at all was just not sustainable.

Ms Malcolm QC submitted that the judgment was riddled with public law errors. After the hearing she and her junior counsel, Brian Dean, helpfully compiled a Note setting out these errors. It is not necessary to enumerate all of them but two of them seemed to be of particular significance. The first is that the judge mis-characterised as “submissions” matters which formed part of the coroner’s decision in his ruling. The second is that, although the judge accepted the coroner’s findings on the evidence as to genuine fear and concern of the officers, she then minimised the risks and apostrophised the professional risk assessment of Inspector Rotchell as “wholly speculative” or “pure speculation”. Whether these are “public law errors” or just errors or inconsistencies in the judgment may not matter.

Ms Malcolm QC submitted that it was illogical for the judge to say at [64] of her judgment that there was a greater risk from the officers being seen by the general public than from there being seen by the family who were those who were closest to Qassim Hall and were in communication with him. She submitted in this context that the coroner and the Court would be entitled to take into account not only the risk of disclosure by family members of the officers’ identity as a consequence of pressure from Qassim Hall but also the risk of inadvertent disclosure.

She submitted that the judge had misunderstood the purpose of an inquest which was not to provide “catharsis” for the family or to allow them to assess the demeanour of the officers giving evidence, although that may be its welcome effect. Ms Malcolm QC emphasised that the inquest was not a blame-laying exercise, however much the family might want it to be, and that the family had no right to cross-examine witnesses other than with the permission of the coroner. She submitted that, in an inquisitorial process such as an inquest, getting the best evidence was of particular significance. It was in the public interest for the best evidence to be available to the fact-finder and that public interest was actively served by making life comfortable for the officers giving evidence. If there was no blame on them, then it was right and proper to protect them. If there was blame, the correct forum for that issue to be resolved was a criminal trial, not the inquest. She submitted that the coroner had to have an eye to the future. If the officers were identified and then threatened or harmed, it was less likely that there would be a full and proper criminal trial. The officers would be less able or willing to give evidence.

On behalf of the coroner, Jonathan Hough QC adopted a neutral stance as to the outcome of the appeal but he sought to assist the Court on two aspects of the case: (i) the correct interpretation of Rule 18 and (ii) the nature and content of the ruling.

He reminded the Court that prior to the enactment of Rule 18, there was no full procedural code and thus no statutory rule in relation to the use of screens in inquests. Any orders for screens were made under inherent common law case management powers. Before the Rules were made, in March 2013 the Ministry of Justice issued a consultation on coroners’ rules and regulations which attached draft Rules. The draft Rule 18 was similar to the current version, except that (i) sub-rule (2) only referred to improving the quality of the witness’s evidence as a basis for a screening determination; and (ii) sub-rule (3) did not make reference to national security interests as a factor in the determination. Following the consultation, the Ministry issued a response paper in which it explained: “We have amended rule 18 to allow the coroner to permit screened evidence only where this would be [i] likely to improve the quality of the evidence, or [ii] is in the interests of justice or [iii] national security.” The Rules were then laid before Parliament and passed in their current form.

Mr Hough QC submitted that the use of the word “may” in sub-rule (1) indicates that this is a discretionary power. Sub-rule (2) provides for a threshold condition that the discretion can only be exercised if the coroner determines that either giving evidence from behind screens would be likely to improve the quality of the witness’s evidence or “allow the inquest to proceed more expediently”. The “determination” referred to in sub-rule (3) is that determination made under (2) but it requires the coroner to have regard to all the circumstances of the case including the interests of justice and national security. He submitted that, contrary to the judge’s view, “expediently” should be given a relatively broad meaning of “appropriately” and not limited to convenience or practicality. This made internal sense of the Rule and meant that a determination that the giving of evidence from behind screens would allow the inquest to proceed more appropriately was a threshold condition. The consideration of what was most appropriate brings in the wider issues of what is in the interests of justice or national security.

He submitted that if “expediently” is given the narrow meaning which the judge seems to have favoured, serious practical problems are created since it is difficult to see how a coroner could order screens for national security or operational reasons (for example in relation to witnesses from the security services or under-cover police officers) if expedience was limited to convenience or practicality. This wider meaning was consistent with the use of the word expedient in other statutory contexts. Thus, the now repealed Tribunals of Inquiry (Evidence) Act 1921 permitted the public to be excluded from a hearing if “it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given.” Section 9A(2)(a) of the Coroners and Justice Act 2009 (a section added by amendment after the making of the Rules) provides that a coroner may require a juror to surrender an electronic communications device if the order “is necessary or expedient in the interests of justice”. Mr Hough QC submitted that if “expedient” bore only the narrow meaning of “practical”, it would be an oxymoron in each case.

Mr Hough QC submitted that consideration of both anonymity orders and screens orders engages the open justice principle. What is entailed is a fact-sensitive balancing exercise taking account of all the factors, including the fears of witnesses, even if objective justification is weak or lacking. He submitted that in practice a coroner will comply with the balancing exercise by posing three base questions: (i) would the screening order sought improve the quality of the evidence or be appropriate in all the circumstances; (ii) if yes, does the balance of competing interests, including those of the family, justify the order sought; and (iii) would there be an Article 2 or 3 risk (risk to the life of the witness or risk of serious harm to the witness) if the order were refused? If so, the order would usually be made.

He submitted that there were five particular features of the case which provided the context for the coroner’s ruling: (i) the case involved the controversial death of a black man in police custody following multiple restraint; (ii) there was substantial evidence that Qassim Hall had a lengthy history of crime, including violence, although not the most serious, and a propensity for persistent harassment. On the basis of that evidence and evidence that he blamed the police for his brother’s death, the anonymity orders were made; (iii) the other members of the family had no criminal history and there was no evidence that they posed a threat to the officers; (iv) there was evidence that the officers were fearful of giving evidence if they were identified; and (v) it was common ground that the coroner, the jury and the legal representatives will see the witnesses but that if the general public saw the witnesses there is a real risk of their being identified to Qassim Hall, as the judge found at paragraph 64 of her judgment.

Mr Hough QC then drew attention to the salient aspects of the ruling. The coroner had recorded that Mr Thomas QC objected in principle to screens but also argued that his clients, the Hall family, should see the officers. In the Decision section, the coroner recorded that these applications are immensely fact-sensitive and he recognised the importance of the matters set out in Rule 18(3). He made the points about the screening of the officers from the family offending “natural justice” (in other words open justice) so that, as Mr Hough QC submitted, the coroner was focused on the central issue of whether the family members should see the witnesses. He dealt efficiently with the evidence about the threat posed by Qassim Hall, concluding (i) that the threat was credible; (ii) that the officers had a genuine fear; (iii) that it was affecting their health and (iv) that it would continue to do so, none of which, Mr Hough submitted, was controversial.

He submitted that the ruling followed the scheme of Rule 18 and said that the coroner was trying to reflect the terms of Rule 18(2) which requires one or other threshold condition to be satisfied, not cumulative conditions; and (ii) the coroner took account of the interests of justice in the remainder of his decision. He concluded that the use of screens would improve the quality of the evidence, which nobody challenged. He further stated that the coroner set out that he could not make the determination without considering all the circumstances of the case, in particular the matters set out at Rule 18(3)(a) and (c). No issue of national security impacted on his decision.

He then considered the remaining limb of (3) at sub-section (b), the interests of justice, saying they were best served when fact-finders could make findings on the basis of the best evidence which would be achieved by the evidence being given from behind screens. Mr Hough QC submitted that the coroner used the words “to the extent” at the beginning of paragraph 48 of his ruling because he recognised that he was considering both a threshold consideration and a balancing exercise, not purely a balancing exercise.

The judge had concluded that the coroner had engaged in too limited a balancing exercise but Mr Hough QC submitted that he had, in fact, taken account of the interests of the family.

On behalf of the Hall family, Adam Straw emphasised the importance of the principle of open justice in the balancing exercise that has to be undertaken. He drew specific attention to what was said by the Court of Appeal in at [63]:

Mr Straw submitted that part of the purpose of open justice was that the family should see the police witnesses and be able to assess their demeanour when a central issue was whether they had an honest belief that Andrew Hall posed a threat whilst in their custody. Mr Straw was, however, unable to point to any legal authority which established specifically that part of the principle of open justice was to enable members of the public, or here the family, to assess the demeanour of witnesses. He submitted that not having sight of the witnesses will make it more difficult for the family to understand the decisions reached by the jury.

In relation to ground 1 of the appeal by the Police Federation, that the judge had erred in concluding that the coroner had failed to take account of the principle of open justice, Mr Straw submitted that whether the judge was wrong was a question of fact and the standard of review for this Court was whether the judge’s decision was clearly erroneous. He relied upon the analysis of the circumstances in which an appellate court can review findings of fact by a court of first instance and that the judge was clearly right that the coroner had not had regard to the powerful imperative of open justice.

He submitted that the judge had been correct to substitute her decision for that of the coroner as there was a balancing exercise in considering the duty of fairness to a witness and on a judicial review it was for the Court to decide for itself whether a measure was fair. Whilst due weight should be given by the Court to the decision of the coroner as the primary decision-maker, in this case very little weight should be given to his decision since he had misdirected himself as to the law.

Leslie Thomas QC made similar points in his oral submissions. Whilst he accepted that the family was not the decision-maker in the inquest, they play an important part. They could not grieve properly until they were able to look into the eyes of the person who took their relative’s life, as their solicitor Alice Stevens (of Broudie Jackson Cantor) made clear in her witness statement. He emphasised that because this case concerned the death of a black man in custody, there was a belief that the system was weighted against them and there could be a cover-up. There was no good reason why they should not see the witnesses and if they did not, far from being at the heart of the coronial system as the Explanatory Memorandum said, they would feel side-lined.

He submitted that the Chief Constable was simply wrong in taking exception to the judge considering race as a factor relevant to open justice. A principal purpose of open justice was to restore public confidence and there was always a high public interest in open justice in any case where someone was killed at the hands of police officers, particularly the death of a black man, of which there were a disproportionate number globally. There was a legitimate interest in knowing whether race played any part in this death.

In relation to the complaint by the police that the judge had erred in distinguishing screening from the family and screening from the wider public he submitted that the onerous threshold to which Mr Straw had referred had not been met. The family was a small group of known individuals and Inspector Rotchell had identified no threat from the family itself. Ms Dyer says that she has known for four years the identity of two of the officers, but she has never disclosed that information to Qassim Hall. The family has made clear that they will not disclose the identity of the officers to him and has provided undertakings to the court. By contrast, the wider public could be anyone who came into the public gallery. That person’s character or propensity was an unknown risk. The distinction the judge had drawn was a rational one.

Mr Thomas QC submitted that the judge was correct to conclude that there was no objective risk, that there was no evidence that the family will breach the undertakings and the assertion that they will be forced to do so by Qassim Hall is, as the judge, said pure speculation. The alleged risk was without evidential or objective foundation. It was not correct that the judge had failed to evaluate the subjective fears of the officers. She had correctly stated the common law test and concluded that the officers’ fears and concerns were genuine, but she was entitled to conclude that they had less weight because they were not objectively justified.

In relation to the suggestion by the Police Federation that Inspector Rotchell’s evidence was not contested, Mr Thomas QC said that ultimately the only risk relied upon was that Qassim Hall would somehow forcibly extract the information about the identity of the officers from the family – and even that was contested by the family. There was no evidence of any stronger risk and no evidence of any risk of inadvertent disclosure.

The starting point for the analysis of this appeal, said Lord Justice Flaux, must be to consider what is the correct construction of Rule 18 of the Coroner’s Rules. As was essentially common ground between counsel for both the police and the Hall family, the Rule is not happily worded, but the analysis of the Rule put forward by Mr Hough QC is the correct one. Rule 18(1) confers a discretion and Rule 18(2) then provides that one of two threshold conditions must be met before the discretion can be exercised: That the coroner determines that giving evidence behind screens would be likely to improve the quality of the evidence or that it would be likely to allow the inquest to proceed more expediently, or appropriately.

In making that determination a coroner has to consider all the circumstances of the case under Rule 18(3) and, in particular, the matters listed in (a) to (c). In agreement with Mr Hough QC, it can be said that if “expediently” bore the narrow meaning of efficiency or practicality, it is difficult to see how, in the case for example of evidence from the security services or undercover police officers, ordering the evidence to be given from behind screens, whilst in the interests of national security, could be said to allow the inquest to proceed more efficiently or in a more practical manner. On the other hand, if expediency is equated with allowing the inquest to proceed in the most appropriate manner, the coroner can give the proper consideration which (3)(b) requires him to give to the interests of justice and of national security.

The “interests of justice” clearly is and is intended to be a wide term which encompasses the principle of open justice. The importance of that principle has been emphasised in countless legal authorities in the higher courts.

The critical question for the Court, said Flaux LJ, is whether the coroner erred in law in concluding that an order for the officers’ evidence to be given behind screens was justified. In considering that question, it is important to bear in mind that, despite the attempt by Ms Malcolm QC to broaden the application, the application which was made to the coroner was under the common law and not under Articles 2 and 3 of the ECHR.

Furthermore, if the Appeal Court considers that the coroner did not err in law, then it must follow that the judge’s determination that he misdirected himself in law was wrong. The suggestion by both counsel representing the Hall family (Messrs Thomas QC and Sraw) that somehow this was a question of fact for the judge or that this Court should exercise the same caution in relation to reviewing the judge’s conclusion as we would if she had made findings of fact is wholly misconceived.

The determination of the critical question whether the coroner erred in law in turn depended upon whether he gave sufficient weight to the principle of open justice in engaging in the balancing exercise required by the common law test. As the judge herself recognised, the coroner’s decision must be read with a degree of benevolence or pragmatism.

It seems to me that this approach by the judge fails to take into account sufficiently the opening words of the coroner’s ruling: “To the extent that my decision has involved a balancing of competing interests between the officers and the family”. That is not a reference to what follows in the subsequent paragraphs, which does not consider those competing interests, but to what he has already said elsewhere in the earlier Decision section about those competing interests. In particular, the coroner identifies his instinctive concern that the proposition that the family of the deceased who died in circumstances calling into question the discharge by the state of its Article 2 obligations should not see the agents of the state implicated in his death whilst giving evidence offends the principle of “natural justice” (by which he clearly means open justice) and procedural fairness. He goes on to say the instinct is all the stronger where the application for the use of screens is not based on evidence or intelligence reflecting adversely on the family members most likely to be affected by it.

Those paragraphs do demonstrate that the coroner had well in mind the principle of open justice and that that principle would be offended if the family could not see the witnesses. In the circumstances, it cannot be said that he failed to appreciate the significance of the principle. What he then went on to do was to balance against the principle of open justice, and the interest of the family in seeing the witnesses, the fears of those witnesses of threats from Qassim Hall and their interest in not being identified to Qassim Hall. Thus, in my judgment, the judge was wrong to conclude that the coroner had only weighed against the quality of the evidence being improved by the use of screens the question of whether the effectiveness of questioning will be impeded by screens and thus engaged in too limited a balancing exercise. The judge has overlooked the earlier part of the Decision section where the competing interests were considered and balanced. This may have been overlooked by the judge because she appears to have erroneously characterised as submissions aspects of the ruling which were clearly part of the coroner’s decision.

Whilst the ruling is not expressed as clearly as it might be, the coroner did not err in law in failing to take proper account of the principle of open justice or engage in too narrow a balancing exercise. It follows that the judge was wrong to conclude that he had erred in law and to substitute her own decision for that of the coroner. Accordingly both appeals were allowed and the coroner’s order reinstated.

In the circumstances, Flaux LJ said it was not strictly necessary to consider the other criticisms of the judgment raised by the appellants but, nevertheless, he dealt with them relatively briefly: The principal matter was the judge’s distinction between what she recognised is the real risk that, if the general public could see the officers give evidence, the officers would be identified by or to Qassim Hall but the position of the family was very different and the suggestion that they may be forced by Qassim Hall to disclose the identities of the officers was “pure speculation”.

Despite Mr Thomas QC’s arguments to the contrary, Flaux LJ (and Lord Justice Lewison) agreed with Ms Malcolm QC that the distinction which the judge draws is an illogical one. Aside from Qassim Hall, or an associate of his going into the public gallery and identifying the officers (and in the case of an associate passing on information to him), it is difficult to see how a member of the public seeing the officers creates a real risk of identification to Qassim Hall whereas the members of the family who have that familial connection with Qassim Hall and are in communication with him do not create a real risk.

The professional risk assessment of Inspector Rotchell set out in his second statement was:

As already noted, the coroner referred to the fears of the officers that Qassim Hall would seek to harm them if made aware of their identity and he said that the Rule 18 power could only be exercised in respect of the threat said to be posed to officers by Qassim Hall. He found that threat to be credible and went on to make the further findings to which Mr Hough QC referred. Although the coroner dealt with the matter in a rather attenuated fashion, it seems that he was concluding that the fears of the officers were both subjectively genuine and objectively justified. By finding that the threat from Qassim Hall was credible, he was accepting the risk assessment of Inspector Rotchell that there was an objective threat to the officers from Qassim Hall. In the light of his evidence, the specific finding by the coroner (which was not challenged on the judicial review) and the fact that an order for anonymity was made by the coroner without objection from the family (itself a powerful indicator that the officers’ fears were objectively justified) the judge was wrong to conclude that the risk of Qassim Hall extracting the identity of the officers from family members was pure speculation. The risk and the threat he posed were objectively established.

As noted in the summary of the submissions of the parties, Mr Thomas QC advanced various reasons why the family should be able to see the police witnesses give their evidence pursuant to the principle of open justice. He referred to the fact that this was a case of a black man who died in custody (or rather immediately after having been in custody) in circumstances where the police as agents of the state were implicated in his death and there was a high public interest in open justice. That was a submission he also made to the coroner and the coroner clearly accepted the force of the submission in his findings, but he then had to balance that public interest (and interest of the family) against the interests of the officers: The balancing exercise in which he engaged was an appropriate one.

Mr Thomas also submitted that it was important for the family to be able to see the officers implicated in Mr Hall’s death in order to achieve catharsis. This does not seem to have been advanced as a distinct argument before the coroner. Whilst Ms Malcolm QC is, no doubt, right that achieving this purging for the deceased’s family is not the purpose of an inquest, the fact that the Explanatory Memorandum to the Rules states that one of the policy objectives of the reforms introduced by the 2009 Act is “to put the needs of bereaved people at the heart of the coroner system” demonstrates that, since one of those needs is likely to be the need for closure, this is an important matter to be taken into consideration. However, the coroner recognised the interests of the family but concluded on the balancing exercise that they were outweighed by the need to allay the fears of the officers to ensure that they gave the best evidence, itself an important aspect of the public interest.

Mr Thomas QC and Mr Straw emphasised that the family should be able to see the witnesses give their evidence in order to assess their demeanour. Mr Thomas QC did raise the question of demeanour before the coroner, but only in the context of pixelation of the CCTV footage so that the jury would not be able to assess the demeanour of the officers during the struggle with and restraint of Mr Hall, but the concerns he raised were addressed by ensuring that the coroner, jury and legal representatives see an “unredacted” version of the video footage. Counsel for the Hall family were unable to point to any legal precedent which considered that one of the reasons why the members of the deceased’s family, or members of the public more generally, should be able to see witnesses give their evidence is to assess their demeanour.

As was pointed out in the course of legal argument, recent decisions of the Appeal Court have cast some doubt on the extent to which assessment of demeanour by the Court is a reliable indicator as to credibility. However, whatever the values of or limitations as to assessment of demeanour, that assessment is for the fact-finder in any court, here the jury in the coroner’s court, and not for the family of the deceased. Mr Straw’s fall-back submission that unless the family could see the witnesses, they might not understand the decision reached by the jurydid not find favour. As Lewison LJ pointed out in argument, if the family thought a witness whom they could see was lying but the jury believed him, in one sense that poses a worse problem.

Accordingly, it was consider that none of the additional matters raised by Mr Thomas QC and Mr Straw affects the validity of the balancing exercise in which it was found that, contrary to the judge’s view, the coroner did engage.

Finally, it was recorded in the Appeal Court judgment that during the course of argument we raised with the parties the question of whether the media should be able to see the police witnesses. No real objection was raised on behalf of the police, but points were raised as to the safeguards that would need to be in place and matters such as undertakings by representatives of the media. In the circumstances, although if an application is made to the coroner by representatives of the media to see the witnesses give evidence, it will be worthy of consideration, the decision as to whether to accede to such an application and on what terms is one for the coroner.

For the above reasons, said Flaux LJ, the appeals of the Chief Constable and officers B and E and of the Police Federation and the officers it represents were allowed and restore the order for screens made by the coroner. Lewison agreed with his fellow law lord.

The dissenting judgment of Lord Justice Males

But the allowing of the appeal was not unaminous. Uncommon in both the civil and criminal appeals courts. The judgment of Males LJ is set out in full (apart from minor corrections). For anyone interested in deaths following police custody and inquest hearings it is a recommended read, providing useful additional detail about what happened in the lead up to the death of Andrew Hall and, more crucially, through the eyes of this journalist at least, the most lucid, well laid-out argument about the case and the points of law in issue. Without wishing, in any way, to demean Flaux LJ’s output, it is an outstanding piece of work (and learning) from Lord Justce Males:

“While I agree with much of Flaux LJ’s judgment, I have reached a different conclusion. To explain why, it will be necessary to travel over some of the ground which Flaux LJ has already covered.

When an application for witnesses at an inquest to be permitted to give their evidence behind a screen is based on fear for the witnesses’ or their families’ safety if their identity becomes known, there are two bases on which the application may be made. One is that the witnesses’ rights under Article 2 or Article 3 ECHR are engaged. The other is that screens are necessary in accordance with the common law principle of fairness.

As appears from cases such as In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, there are material differences between an application invoking Convention rights and an application under the common law, albeit that both routes may, and often will, lead to the same destination. These differences may be summarised as follows:

The application for screens in the present case was made under the common law. Although some submissions were made to us based on Article 3, that was not a case advanced to the coroner and, as I have explained, it would have given rise to different considerations. It follows that we are concerned with the common law and our primary focus should be on the coroner’s decision.

At common law, open justice is always an important consideration to which, as a matter of law, substantial weight must be given (for example in R (T) v West Yorkshire (Western Area) Senior Coroner [217] EWCA Civ 318, [2018] 2 WLR 211 at para [56] referring to open justice as “the fundamental principle in respect of all proceedings before any court, including coroners’ courts” and at para [64] referring to “the powerful imperative of open justice”). Accordingly any derogation from open justice (including both anonymity and the use of screens) must have a clear justification and must go no further than is reasonably necessary.

I agree with what Flaux LJ has said concerning Rule 18 of the Coroners (Inquests) Rules 2013. Although in some respects not happily drafted, the terms of the Rule permit (and therefore should be read as requiring) the principle of open justice to be taken into account when making a decision as to the use of screens. Depending on the circumstances of the case, this may fall to be considered either (1) under Rule 18(3) when making the Rule 18(2) determination whether screens would improve the quality of the evidence or allow the inquest to proceed more expediently or (2) when considering the overall justice of the case after having made that determination. What matters is that it should be clear that the principle has been considered and given proper weight at some stage.

Where the coroner determines, after giving substantial weight to the need for open justice, that the use of screens is reasonably necessary, the inquest will be Article 2 compliant: Bubbins v UK (2005) 41 EHRR 24.

In considering whether there is justification for the use of screens, the purpose of the principle of open justice as applied to the facts of the case must be taken into account (T v West Yorkshire Coroner at para [63]). In the case of an inquest, one major purpose of open justice is to ensure public confidence in the fairness, thoroughness and transparency of the process. Referring to the state’s common law duty to investigate deaths of those in custody in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 at [31], Lord Bingham’s summary of the purposes of open justice in an inquest into the death of a person in custody emphasises not only the importance of public confidence, but also the particular role of the bereaved family. The importance of that role is underlined by paragraph 7.1 of the Explanatory Memorandum to the Coroners (Inquests) Rules 2013, explaining that one policy objective of the Coroners and Justice Act 2009 was to “put the needs of bereaved people at the heart of the coroner system”. It is therefore not surprising that Rule 18(3)(a) requires the coroner to consider any views expressed by an interested person, which clearly includes the family of the deceased.

In the present case it was accepted (or at any rate not disputed) that the police witnesses should be anonymous. This was itself an important derogation from open justice which was necessary because Qassim Hall, the deceased’s brother, was found to represent a credible threat to the safety of the witnesses and their families if their names were known to him, and because the officers were genuinely fearful for the safety of themselves and their families and, in some cases, that fear was affecting their health. The need for anonymity was not challenged before the coroner and has been accepted by the family. The issue before the coroner was whether those concerns justified a further derogation from open justice, namely the use of screens. Before the coroner the family challenged the need for the use of screens at all, and their submission that witnesses should not be screened from family members (other than Qassim Hall) was merely a fallback position. It is therefore understandable, perhaps, that the principal focus of the coroner’s decision was on whether screens were necessary at all.

The family has not challenged in this appeal the coroner’s decision that it was necessary to screen the witnesses from the public in general (including, if he attends, Qassim Hall). That was because of the risk that if the witnesses were seen by the public, their identity would be disclosed to Qassim Hall. For my part I do not see any want of logic in saying that the witnesses should be screened from the public, but not from the family. If Qassim Hall is indeed anxious to discover the witnesses’ identity, it would not be difficult for him to ask an associate who is familiar with police officers in the Huddersfield area to attend on his behalf.

We are concerned only with the coroner’s decision that screens should prevent the family from seeing the witnesses give their evidence. It is important to note, however, as Flaux LJ has explained, that the family’s legal representatives will have sight of the witnesses while they give evidence and have been or will be given access to unedited CCTV footage which (we were told) shows in full the incident during which force was used on the deceased by police officers and when restraint was applied to him. We have not seen that footage, but we are told that it shows a struggle between Andrew Hall and a number of police officers extending over several minutes, in the course of which officers struck Mr Hall a number of times and there is some evidence of him striking back. The family and the public will see an edited version of that footage in which officers’ faces will be pixelated and their names will be “bleeped out”. The jury will see a further version of the footage in which there is no pixelation but officers’ names remain “bleeped out”. It follows that the family’s legal representatives will not be hampered in any way in conducting cross examination of the police witnesses by the existence of screens. Moreover, if it were to turn out that there is anything relevant to the cross examination which has been removed in the editing process, the family’s legal representatives will be in a position to cross examine about it, albeit that care will need to be exercised to ensure that what is said does not identify the officers concerned.

Accordingly the use of screens to prevent the family from seeing the police witnesses will not affect the efficacy of the investigation into Andrew Hall’s death. This case is not, therefore, about the ability of the family to have the evidence of those witnesses properly challenged. Whether or not screens are used, there will be a thorough investigation into the circumstances of his death in which the family’s legal representatives will be able to challenge the officers’ evidence and to suggest, to whatever extent is appropriate, that the use of force by the police was unlawful. The case is solely concerned with whether the family should be permitted to see that process as well as to hear it.

It is, therefore, necessary to consider how the purposes of open justice in inquest proceedings may be served by enabling members of the deceased’s family to see police officers whom they believe to be responsible for the deceased’s death give their evidence and the extent to which those purposes may be frustrated if the family is unable to see the officers do so.

This topic was addressed in the witness statement of Deborah Coles, an Executive Director of INQUEST, a charity which provides advice to bereaved people concerning contentious deaths, their investigations and the inquest process. Ms Coles has extensive experience acquired over 25 years of working with families of persons who have met their death at the hands of state agents. Under the heading of “The benefit for families of seeing important witnesses giving evidence”, she identified four overlapping benefits, which can conveniently be labelled “trust”, “demeanour”, “accountability” and “catharsis”. She said:

With the exception of what Ms Coles says in paragraph 8 of her statement about families placing weight on the demeanour and body language of a witness, I regard this as a compelling explanation of why it is important for family members to see the witnesses themselves in circumstances such as these and why it is not a sufficient alternative that their legal representatives may do so. As to demeanour, however, it is not the family’s role to determine whether the witnesses are telling the truth, that being the function of the jury, while in any event it has increasingly come to be recognised that demeanour and body language are an unreliable guide to truthfulness (see R (SS) (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 at [33] to [43]). I have no doubt that in the present case the CCTV footage of the incident will be played many times during the cross examination of the police witnesses, if necessary in slow motion. The extent to which their evidence is supported by or consistent with that footage will be a far more reliable guide to whether they are telling the truth than their demeanour or body language.

For the family, Leslie Thomas QC placed considerable weight on the fact that Andrew Hall was black. He said that there was a particular and significant public interest in an inquest into the death of a black man in police custody, and that in such cases it is common for the bereaved family to believe that the system is weighted against them, that there is a cover-up, and that police officers are given special privileges. For that reason, he submitted, it is particularly important for the family to be able to see the police officers give their evidence.

For the Chief Constable, Hugh Davies QC took issue with this approach. He insisted that the race of the deceased is irrelevant and that there is a strong public interest in a full and transparent investigation into the death of any person in custody, regardless of their race. Accordingly the public interest in open justice, including the need to hold state agents to account, is no different in the case of a black man than in any other case. From this, it follows that the deceased’s race cannot provide a stronger case for the family to be permitted to see the police witnesses give evidence than if the deceased had been white.

It is of course correct that the strength of the public interest in a full and transparent investigation into the death of a person in custody does not vary according to the deceased’s race. That was not Mr Thomas’s submission. Such an investigation is essential in every case for the reasons given by Lord Bingham in Amin. But I would accept that the death of a black man in police custody gives rise to particularly acute concerns. That is because of the perception which Mr Thomas described. It would be idle to deny that this perception exists. There is no doubt that black communities have in general less confidence in the police than other sections of the community, and that on occasion distrust and lack of confidence have led to racial tensions and conflicts. For present purposes what matters is not whether the perception is well-founded, but rather the fact that it exists.

In these circumstances, it is entirely understandable that the family of Andrew Hall should wish not only to hear, but also to see the police witnesses when they explain why they believed it was necessary to restrain him with the use of force, including the striking of a number of blows, and to see those witnesses when they react to the case which seems likely to be put to them, that the force used was excessive and unlawful.

All this amounts, in my judgment, to a powerful case that the application of the open justice principle in the circumstances of the present inquest requires that they should be able to do so. If they are not permitted to see the police witnesses, there is a real risk that the inquest may not achieve all of the purposes which open justice is intended to promote. This does not necessarily mean that the application for screens should be rejected. But it does mean that a compelling justification will be required to sustain the coroner’s order that the witnesses be screened from the family’s view.

A threshold requirement which must be satisfied before screens can be used is that their use “would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently”. In this case the coroner based his decision on the fact that screens would be likely to improve the quality of the police witnesses’ evidence and he did not consider any question of expediency.

A witness’s subjective concerns may be relevant in two overlapping ways. The first, referred to by Lord Carswell in Officer L in the passage from [22] cited above, is that fairness requires that witnesses should not be subjected to fear, particularly if that affects their health, if that can be avoided. The existence of such fears is therefore a factor to be taken into account in the overall assessment. The second is that such fears may impede the witness, for example because he is distracted or pre-occupied, from giving his evidence to the best of his ability – in short, from doing himself justice.

The requirement that screens would be likely to improve the quality of a witness’s evidence is directed at the need for the inquest, in this case the jury, to have the best possible evidence in order to determine the matters which it is the purpose of the inquest to determine, namely who the deceased was, and how when, where and in what circumstances he met his death. This is distinct from allaying a witness’s subjective concerns, which is a separate factor in the balance.

While any likely improvement in the quality of a witness’s evidence is sufficient to satisfy the threshold requirement under Rule 18(2), and obviously it is desirable that the jury should have the best possible evidence before it in order to perform its task, the weight to be given to such a likelihood in the coroner’s overall evaluation whether there is sufficient justification to depart from the principle of open justice must depend on the circumstances of the case. It is necessary to consider what difference the use of screens is likely to make, for example whether any improvement in a witness’s evidence is likely to be significant or only marginal and to balance this against the need for open justice. In general, for example, police officers can be expected to have some degree of resilience when giving evidence. In the present case it should not be too difficult for the officers, assisted as they will be by the CCTV footage, to explain what they did and why they did it – as indeed they have already done to the IOPC investigation which cleared them of any wrongdoing. In the case of an important witness, such as a police officer who has used force on a person in custody, the fact that screens would be likely to improve his evidence only marginally (if that were the position) would be unlikely to carry much weight.

The justification put forward before the coroner for screening the witnesses from the family was a narrow one. The only risk on which the Chief Constable and the witnesses relied was the risk of harm caused by Qassim Hall who (it was accepted) should not see the witnesses. Moreover, at any rate by the conclusion of the hearing, it was not contended that any family member would deliberately or even inadvertently disclose information to Qassim Hall which would enable him to identify any of the officers. Rather, the case which was advanced was that family members would be vulnerable to force or threats of force by Qassim Hall. As Mr Davies put it in submissions to the Coroner on behalf of the Chief Constable and the officers whom he represented, his submissions being adopted by Mr Brian Dean who represented the remaining officers:

This was the only objective basis for the existence of a risk of harm on which the Chief Constable and the witnesses relied.

Accordingly the objective justification for the use of screens depends on the existence of a real risk that Qassim Hall would seek to exert pressure on family members to reveal information likely to enable him to identify one or more of the officers and that those family members would succumb to such pressure.

It is right to acknowledge that in summarising the arguments made to him, the coroner referred to the acceptance by Mr Dean, representing some of the police officers, of the fact “that the use of screens involves a significant departure from an important general principle of natural justice”, and to the submission by Mr Thomas that the family was “asking for no more than the application of the ordinary rules of natural justice”. It is plain that the coroner’s reference to “natural justice” meant (or at least included) the principle of open justice. Further, the coroner began the “Decision” part of his ruling, after acknowledging that applications for the use of screens were fact sensitive and required him to take into account the matters set out in Rule 18, as follows:

I would accept that these passages show that the coroner’s starting point was that the principle of open justice required that the family should be able to see the witnesses in question. He stated also that he accepted Mr Thomas’s submission that Rule 18 was expressed in terms making clear that the presumption was that evidence at an inquest should not be given from behind a screen.

So far, it might be possible to criticise the coroner’s ruling on the basis that he did not spell out that open justice is a principle to which substantial weight must be given or the corollary that the use of screens in the circumstances of the present case requires a compelling justification. Certainly he did not refer to the particular importance of transparency in the case of the death of a black man in police custody. However, if that criticism stood alone, it might not be fair to regard the coroner as having misdirected himself, having regard to the need to accord his ruling a benevolent interpretation. Clearly, having started from the point that “natural justice” required that the family should be able to see the witnesses, he was then correct to go on to consider whether there was a justification for departing from that position.

The coroner went on to find that the police witnesses were genuinely fearful for their safety and for the safety of their families and that, in some cases, those fears were affecting their health. There was, therefore, a finding of subjective fears which were having serious consequences for the officers concerned.

The coroner found also that these fears were credible, by which he meant objectively well-founded, in the light of Qassim Hall’s history including convictions for offences of violence against the police (albeit I would add, relatively minor violence) and a history of making threats of violence. It is important, however, to see precisely what it was that the Coroner found. There are two relevant paragraphs of his ruling, which I set out with my added emphasis:

Thus the coroner found that Qassim Hall presented a threat to the safety of the officers or their families if he became aware of their identity. But the coroner did not at any stage consider whether there was an objectively well-founded risk that permitting the family to see the witnesses give evidence would cause Qassim Hall to become aware of this. In view of the clear but limited way in which the Chief Constable and the officers had put their case, the question which the coroner ought to have considered was whether there was a real as distinct from fanciful risk that Qassim Hall would seek to extract this information from family members by force or threats of force and that they would succumb to those threats. If he had done so, there is in my judgment no basis in the evidence on which he could have concluded that there was such a real risk. There was no basis for thinking that Qassim Hall is so determined to wreak vengeance upon police officers that he is prepared to use violence or to make a credible threat of violence against members of his own family (clearly a threat which was less than credible would not have this effect). Indeed Inspector Danny Rotchell, who carried out a detailed assessment of the risks presented by Qassim Hall for the purpose of the hearing before the coroner, did not really address this possibility. Moreover, there was unchallenged evidence that some family members already know the identity of two of the officers but have not revealed this to Qassim Hall. There was no evidence that Qassim Hall has taken any steps to identify or threaten any of the officers who may have been involved in the events of his brother’s death on 13th September 2016 in the time which has since elapsed.

Accordingly, while the coroner’s findings about the risks presented by Qassim Hall are not challenged, they do not in my judgment justify a conclusion that there is an objectively well-founded risk of harm to the officers or their families. In my judgment the judge was right to say at [64] that “The suggestion that [the family] may be forced by Qassim Hall to disclose the identities of the officers is pure speculation”. Although her use of the word “speculation” was criticised, it is clear that what she meant was that there was no sound evidential basis for thinking that this might happen.

Having made his findings about the risks presented by Qassim Hall, the coroner went on to consider whether the use of screens would be likely to improve the quality of the officers’ evidence and to consider the matters set out in Rule 18(3). He concluded that the quality of the evidence would be improved, but did not expressly refer at this stage to the importance of open justice and its role in promoting the purposes of the inquest. He said:

In my judgment this ruling was flawed.

First, as already noted, the coroner did not treat the need for open justice as a factor to which substantial weight had to be given as a matter of law, in particular in a case concerned with the death of a black man in police custody, so that a powerful justification was needed to override this.

Second, the coroner appears to have lost sight of what had previously been his stated starting point, namely his instinctive view that the family should see the witnesses give evidence as a matter of natural justice “in the sense of the fair and impartial application of law and procedure”. Instead, by the time he came to make his decision, his new starting point was that the interests of justice generally were best served by allowing the use of screens when that would enable the witnesses’ best evidence to be given. That was an error in my judgment. The fact that the use of screens would be likely to improve the quality of the witnesses’ evidence was a necessary threshold but in itself was not a sufficient justification for their use. Nor did it establish a rebuttable presumption that screens should be allowed.

Third, it is clear that the coroner proceeded on the basis that there was an objectively well-founded risk of harm to the officers or their families from Qassim Hall when, for the reasons which I have explained, he was not entitled to do so. It is to be expected that this is a factor that would have carried considerable weight with him as no judge would wish to expose witnesses or their families to such a risk. Subjective fears, however genuine and even when having consequences on a witness’s health, carry rather less weight.

Fourth, while it is obviously desirable that a witness should be able to give his best evidence, there is a distinction between providing for the comfort and allaying the fears of a witness on the one hand and enabling the inquest to obtain the most reliable evidence on the other. So far as obtaining best evidence is concerned, the coroner did not consider whether or to what extent the concerns of the officers which would or might prevent them from giving their best evidence would have a material impact on the ability of the inquest to arrive at reliable conclusions. In the present case what the officers did will be apparent from the CCTV footage. Whether the force which they used was reasonable and proportionate on the one hand or excessive on the other is an objective question, which will likewise depend primarily on the CCTV footage. Their evidence will go mainly to the question whether they had an honest belief in the need to use the force which they used. The coroner did not consider how much difference the presence or absence of screens would make to their ability to give evidence on that issue, which would not necessarily be the same in all cases. The coroner has found that it would make some difference but it is hard to think, at least in some cases, that the difference will be significant. There can be no doubt that the officers will say, as no doubt they have already said to the IOPC investigation, that they honestly believed that their use of force was reasonable, necessary and proportionate in the circumstances as they perceived them to be. Accordingly, while the coroner was entitled to say that obtaining best evidence from the police witnesses was a factor in favour of the use of screens, and while in general the weight to be given to each factor was a matter for him, his decision contained no analysis of what difference the use of screens was likely to make to the ability of the inquest to arrive at the truth. Without such analysis, he was not in a position to decide how much weight to give this factor.

When these flaws are taken together, I do not think that the coroner’s decision can be saved by giving it a benevolent interpretation.

Accordingly the balancing exercise which the coroner ought to have carried out would have taken account of the following factors. Militating strongly against the use of screens was the principle of open justice for all the reasons which I have explained. Factors in favour of their use were (1) the subjective fears of the witnesses (which had not been shown to be objectively well-founded), (2) the fact that, in some cases, the witnesses’ health had been affected, (3) the fact that the use of screens was likely to improve the quality of the witnesses’ evidence, but the weight to be given to this factor would require some analysis, as above, and (4) the fact that the use of screens would not impede the effective testing of the witnesses’ evidence. It would also have been sensible to recognise that the order for anonymity and the fact that the officers would be screened from the public would go some way to alleviating any concern.

For these reasons I agree with the judge that the coroner misdirected himself. I do not agree, however, that this is a case where, undertaking the correct exercise, there is only one possible decision which could lawfully be made. Accordingly I consider that the judge was wrong to substitute her own decision whether screens should be used rather than remitting the decision to the coroner.

I would, therefore, set aside the coroner’s ruling together with the judge’s order and would remit the matter to the coroner to make a fresh decision in the light of this judgment. To that extent I would allow the appeal. However, I would not disturb the judge’s order in relation to Officers C and N, as there has been no appeal from that part of her decision.

I agree with what Flaux LJ has said regarding the reporting of the inquest. For my part, I can see no reason why representatives of responsible media organisations, who can be relied upon not to disclose information to Qassim Hall and to report the unlikely event of any threat being made to them by him, should not be permitted to see the police officers give evidence. That would go some way to promote the objectives served by the principle of open justice. However, I agree that it should be left to the coroner to deal with any application which may be made, or if appropriate to consider the matter on his own initiative.”

Alice Stevens, who represents the family, said after the judicial review hearing: “Andrew’s family have been patiently waiting for three years for a full and fearless inquest. Their priority has always been to find out how Andrew died in such tragic circumstances yet, as a result of anonymity and screening applications, they been subjected to background checks, numerous hearings and multiple legal aid applications.

Recent years have shown a rising trend in police officers seeking anonymity and screening at inquests in which their actions are called into question. This judgment rightly highlights the fact that open justice in inquests involving contact by state bodies should not be undervalued and that screening may undervalue public confidence and should not be granted without careful consideration. Andrew’s family will now be able to fully focus on Andrew’s inquest and try to obtain answers to the many questions that have surrounding his death.”

Although events have superceded that statement much of the sentiments expressed therein remain intact.

Deborah Coles, Director of INQUEST saysWe repeatedly see defensive and combative tactics by police lawyers in the growing number of anonymity requests at inquests. This is about justice being done and being seen to be done. Anonymity goes against the spirit of an open and transparent investigation and hinders scrutiny of public officials. This judgment recognises the significant public interest in deaths of black men in custody. Open justice is vital to assuage public concern about cover ups and to ensure accountability.”

The Hall family are working with INQUEST caseworker Anita Sharma. The Independent Office for Police Conduct are interested parties in the legal proceedings but have, so far, not been represented. The findings of their investigation, following the death of Andrew Hall, will not be made public until after the inquest.

This is an important case, very much in a town I know well, and with familiar faces on counsel’s ‘front row’. I will be following it from the press seats or, for the time being at least, via a rather more stark Cisco Webex Platform.

Other anonymity orders have, typically, been granted for police officers following fatal shootings. However, there has been a recent, creeping trend of anonymity applications being made, and granted, to police officers at inquests and misconduct hearings in other circumstances, such as where the death involved police restraint. This, say INQUEST, ‘is disproportionately the case where the person who died is racialised as black’.

Deaths of black men in police custody, or shortly after restraint, have, over the years, been highly controversial and have led to high profile public protests as well as protracted legal battles to uncover the truth over what exactly occurred.

Recent anonymity cases include the deaths of Rashan Charles, Edson da Costa and Henry Hicks. The first two were young black men.

Police officers were also granted anonymity following the fatal shootings of Azelle Rodney, Mark Duggan, Anthony Grainger and Jermaine Baker. Again, all highly controversial cases. I am particularly adjacent to Anthony’s shooting by Greater Manchester Police officers via his bereaved partner, Gail Hadfield Grainger.

West Yorkshire Police are also understood to be applying for anonymity for officers involved in the shooting of another Huddersfield man, Yassar Yaqub. He was shot through the windscreen of his car after a hard stop adjacent to the M62 motorway at Ainley Top in January, 2017. The inquest touching his death is listed for hearing in January, 2022 (read more here).

UPDATE: At the pre-inquest hearing on 19th February, 2021 it was revealed that the Hall family have appealed the Court of Appeal decision to the Supreme Court. The full report from that hearing can be read here.

Page last updated: Monday 22nd February, 2020 at 1035 hours

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This article contains public sector information licensed under Open Government Licence v3.0 (read more here).

© 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 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

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© 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

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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.

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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.

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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“.

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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.

 

 

Bailey can’t bridge the credibility gap

In July 2019, after serving for over 27 years with a backwater county police force, Nicholas Bailey took the short, but well worn path, from Cheshire Constabulary to its metropolitan neighbour, Greater Manchester Police, the fourth largest force in the country.

He followed in the footsteps of past chief constable Peter Fahy; the present incumbent Ian Hopkins; and a former assistant chief constable, Garry Shewan, to name but three, who had all passed through the same revolving door.

At the time of the appointment, GMP’s beleaguered chief constable said in his standard hyperbolic style: “We are delighted to welcome Nick to our GMP family. He is an extremely experienced officer with a wealth of knowledge and skills from a vast policing career, spanning over three decades [emphasis added by author for reasons which should become clear as this piece unfolds].

“His extensive background in policing will help us continue to protect the people of Greater Manchester and his work around local policing will help us continue keeping our communities safe.”

Rather clumsy, one might observe, in the wake of the Manchester Arena Bombing and the Grainger Inquiry, at which the force was thoroughly disgraced, and described by leading QC, Leslie Thomas, as “rotten to its core“.

For his part in the usual mutual backscratching that, inevitably, accompanies these appointments, Bailey said: “I’m thrilled to join GMP as it gives me the opportunity to give back to the city [whilst drawing a salary of around £110,000 per year plus substantial benefits] and surrounding areas where I have lived and spent most of my life. My father was a GMP officer and to follow in his footsteps is a great honour, as well as being a challenge in such a high profile force, with so much ambition.

“When I started my role as a police officer I found my vocation and understanding of how I could help the public. Since then I’ve had many memorable moments and found there was no better feeling than locking up an offender and making a difference to victims of crime or vulnerable people [Bailey has been asked to recall the last time he locked up an offender].

“Unfortunately, a sad reality of the job is the tragic and traumatic incidents that stick in your mind and remain with you forever. I was one of the first officers to arrive at the scene of the [IRA] Warrington bombing in 1993 [Bailey presumably refers to the second bombing on Bridge Street in which two children died and 56 other people were injured] and was the senior officer on duty at Cheshire Police on the night of the Manchester Arena bomb. Both these events ended in a huge loss of life, which only further increases my motivation to be a police officer and do all I can to help. [‘Huge’ equals 2 at Warrington and 22 at Manchester Arena. Tragedies both, but not on the scale to which Bailey carelessly alludes. Which might give rise to doubts about his ability to objectively assess evidence and give straight answers].

“I look forward to the challenges ahead and being involved with a force that has the ambition to have such a positive impact on the communities, particularly through placed (sic) based partnerships.” For the unitiated, including the author, read more here.

What neither Hopkins nor Bailey alluded to was the swathe of deep scandal in which GMP was mired, or the trail of Command Team officers that had left the force in disgrace over the past few years. Or indeed, the perennial scandal surrounding Hopkins’ most recent recruit at that rank, Assistant Chief Constable Maboob Hussain. Now known irreverently as ‘Mabel’, the former West Yorkshire officer apparently prefers ‘Mabs’.

Or, indeed, the even bigger scandals surrounding the senior officer that Bailey replaced: the despicable Steven Heywood. Very fortunate to escape prosecution over his antics at the Grainger Inquiry, amongst a lengthy tariff of other alleged misdemeanours, he still faces a much-delayed public gross misconduct hearing at which neither his former force, nor himself, will likely emerge with any credit.

Add in Terry Sweeney of Shipman body parts and Domenyk Noonan notoriety, Rebekah Sutcliffe’s ‘Titgate’ outrage and Garry Shewan scuttling off, once it became apparent how disastrously his much-vaunted IT Transformation Project, including the now infamous ‘iOPS’ installation, was turning out to be, and the question that simply begs to be asked is: Why would any self-respecting, law-abiding officer want to be involved or associated with persons of such questionable character? That is another question that has been put to GMP’s newest and, for the present, shiniest ‘top brass’.

Bailey, for his sins, appears to have recently taken over the iOPS poisoned chalice from the hapless Chris Sykes, another recent assistant chief constable appointment, commenting for the force on social media, and in the local newspaper, as another catastrophic failure beset the ill-fated project in early February, 2020. One day after this article was published, more whistleblowers came forward to highlight another round of problems. This time, it is reported, connected to Crown Prosecution Service interface, access to crimes and reports, and, most crucially, huge backlog of child protection cases.

It has also emerged that, whilst an iOPS inspection report by Her Majesty’s Inspector of Constabulary is constantly delayed, the force are trying to implement as many of the HMIC recommendations as possible, before publication, in order to mimimise reputational damage and hoodwink the public.

Another GMP Command Team member, the seemingly gutless Debbie Ford, accepted a rare neutral transfer back to her previous force, Northumbria Police, rather than confront the wrongdoing of the senior leadership miscreants amongst whom she sat every morning and, she said, were making her feel ‘uncomfortable’.

But the most persistent, and obvious, Command Team ‘villain’ within GMP is, very arguably, the chief constable himself.  The persistent failings of this belligerent and self-adoring individual are well documented elsewhere on this website (read more here). The most recent scandal post-dated the publication of that widely read, and shared, article when the outcome of the Greater Manchester Mayor’s Assurance Review of Operation Augusta (an abandoned investigation into child sexual exploitation in Rochdale in 2004) was pubished on 14th January, 2020. Hopkins had planned to abdicate responsibility for appearing at a press conference, offering up arch-sycophant ACC Hussain instead.

But the assembled media was having none of that and, eventually, Hopkins was coaxed down from the 4th floor at GMP’s plush HQ. But, only to read out a prepared statement after which he departed in high dudgeon, refusing to answer any questions. A shameful performance, by any measure, and one for which he has been quite rightly and robustly criticised in the press, on television and on social media.

The full Augusta report, which some readers may find distressing, can be read here.

Hopkins deleted his Twitter account later the same day, or early the following morning. He had disgraced himself previously on the social media platform, appearing to abuse his position of authority – and an official ‘blue-ticked’ Greater Manchester Police account – to attack fellow users (read more here). The GMP press office, unusually for them, refused to even acknowledge the request for a statement from Hopkins over his sudden and unexplained disappearance from Twitter. Remarkably, the story didn’t make the mainstream media, particularly the Manchester Evening News whom, conversely and perversely, draw a significant amount of their output from daily social media trawls and, in particular, police force users.

Apart from Grainger, iOPS and Operation Augusta, commentary on another disgraceful GMP scandal now appears very frequently on social media. This concerns the tragic death of 17 year old Yousef Makki, a Manchester Grammar School pupil stabbed to death in a leafy street in the millionaire village of Hale Barns.

Yousef’s family, close friends and supporters have, through their grief, moulded themselves into a formidable and well-informed campaigning group against the apparently woeful police investigation led by DCI Colin Larkin (unsurprisingly nicknamed “Pop”) and, it seems, half-hearted prosecution. The senior police officer with overall responsibility for the investigation is the aforementioned Maboob Hussain. He has emerged as the force’s spokesman on the scandal and ‘Mabel’ has met the Makki family, where his focus appeared to be attempting to discredit former Head of the Major Incident Team at GMP, Peter Jackson, who has been assisting Jade Akoum, Yousef’s exceptionally resourceful and articulate sister and Debbie Makki, his distraught mother. The popular and widely respected Jackson is now well known, nationwide, as the country’s most vocal and effective police whistleblower and, as such, a persistent thorn in the side of GMP and Mabel, it seems.

Jackson has brought Employment Tribunal proceedings against Greater Manchester Police, listed to commence on 20th April, 2020, over the highly questionable treatment he received from fellow senior officers after he blew the whistle on a lengthy, and truly shocking, list of failings by them (read in full here). The Tribunal is expected to sit for 12 weeks as some very dirty GMP washing will get a public airing from a lengthy list of police witnesses.

But Hussain has not been able to shake off the controversy surrounding his own appointment to his senior position in GMP and the serious doubts about his own integrity that flowed from it. It is covered in forensic detail elsewhere on this website (read in full here) and, devastating though it is, stands completely unchallenged. The Hussain/GMP/West Yorkshire Police strategy of stonewalling and attempting to silence critics has not worked – and in the modern era of instant and connected communication was never likely to, either.  Especially as local, regional and national politicians, and policing figures, are now seized of the matter due to the significant adverse publicity being generated, and the consequent damage to public confidence in the police service more widely, and GMP in particular.

On any independent (or political or regulatory) view, Hussain should not be near any evidence chain until the doubts over his own trustworthiness, and those of a large number of other senior officers alleged to be involved in the ‘cover-up’, are resolved one way or another. Those include the deputy chief constable at GMP, Ian Pilling. A man with whom the author of this article has had extensive and mostly unsatisfactory dealings. Those interchanges may, very arguably, persuade anyone reviewing them that Pilling’s conduct, generally, and his approach to the indisputable misconduct of others, is highly questionable. To the extent that his seat as deputy chief constable is untenable at least until those doubts are satisfactorily, and independently, resolved.

After choosing to intervene in a Twitter thread concerning the Makki killing, Nick Bailey has been asked twice, on that social media platform to confirm if he believes that, on the basis of what is set out in the ‘When The Cover Up Becomes The Story‘ article, and the evidence behind it, three of his GMP Command Team colleagues, Hopkins, Pilling and Hussain are officers of unimpeachable integrity.

This is not a trick question, but one of the highest public interest and should, one might expect, have produced an immediate, and unequivocal, response in the affirmative. Especially, with Bailey having eulogised so profusely about the force, and those running it, when he joined Greater Manchester Police a short time ago.

It is also relevant to point out that he is highly qualified to make judgements on the integrity of policing colleagues, having spent a significant period of his Cheshire Constabulary as Head of their Professional Standards Department.

But the problem for Assistant Chief Constable Bailey is that he cannot endorse the integrity of any of those three senior colleagues, having read the Hussain article, without compromising his own.

So what will he do about it? An educated guess is NOTHING. Zero. Zilch. He will, presumably and having ignored the invitation on social media, be prepared to breach the College of Policing’s Code of Ethics requiring him to challenge inappropriate conduct and, of course, his first duty to those precept payers funding his huge salary by keeping them safe from other senior police officers whom, seemingly, cannot be trusted to do their job with unimpeachable integrity, without fear or favour and in accordance with the Oath of a Constable (read in full here). In the case of the Hussain ‘transfer’ from West Yorkshire to GMP there were, demonstrably, a fair few favours called in. It hangs over both police forces like the stench of fish, rotting from the head down.

Why is this situation allowed to pertain? Because that is how the top echelons of policing work. Almost every NPCC-rank officer will cover for another. Omertà is the operational code. We have seen another high profile example of that, very recently, in GMP, with the revelations and naming of the involvement of very senior officers in the premature closing down of Operation Augusta – and all that has happened since to stifle accountability and to silence another nationally-known, high octane whistleblower, Maggie Oliver. Where, undoubtedly, selective memory and refusal to co-operate with the enquiry were some of the most troubling revelations. Two ex-GMP officers who went on to become chief constables elsewhere head that list: Dave Jones, who suddenly quit North Yorkshire Police in mysterious circumstances in April, 2018 and Dave Thompson, still serving at West Midlands Police and known by former colleagues for his remarkable recall, across decades, on matters unconnected to the child sexual exploitation in Rochdale.

It is not clear what Bailey actually does to earn his six figure salary at GMP, apart from publicly support menopause campaigns on social media. His biography on the force website appears completely absent of detail as to what his portfolio responsibilities might be (read here).

He is, however, National Police Chiefs Council lead for information rights, covering the Freedom of Information Act and the Data Protection Act: On this basis alone, Bailey should resign from GMP as they are, in the extensive experience of the author of this article, persistent and mendacious law-breakers of both Acts. The cavalier and unacceptable approach by GMP to disclosure in civil claims is also the subject of repeated and vitriolic criticism by claimants and their lawyers.

If he has national responsibility for information rights, as appears to be the case, then the reader can add, for certain, the disgraceful antics of such as the three Yorkshire police forces, Humberside and Durham to the list of law-breakers. It should also be noted that the situation is getting worse since Bailey was appointed, not better.

In conclusion, it appears that Greater Manchester Police has landed itself with another dud, out of depth assistant chief constable to add to a depressingly long list of previous failures. If he finds this article an uncomfortable read then he should begin today and start to put matters right. Make his family and the beleagured junior ranks in GMP proud of him: Challenge those around him that are, at present, deemed untrustworthy; forget mealy-mouthed excuses and come clean about iOPS; robustly sort out the information rights catastrophe across the police service, starting urgently with GMP; spend less time fretting about menopause; and then another article can be written, and published, enthusiastically lauding those achievements.

Over to you, Nicholas Bailey and please use your right of reply.

At present, over three days after publication of this article, the email sent to ACC Bailey requesting comment has not been acknowledged. GMP’s press officer were copied in to that communication.

That failure to respond is, of itself, a breach of the College of Policing’s Code of Ethics under the headings of Respect and Courtesy; Duties and Responsibilities. But as this article sets out, in the main, if you are a senior police officer engaged by Greater Manchester Police you regard yourself as above the law.

It would, after all, take just a few seconds to type: “Thanks, but no comment“.

 

Page last updated on Monday 2nd March, 2020 at 1445hrs

Picture credit: Greater Manchester Police

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

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

 

Kerry Perkins -v- West Yorkshire Police

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

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

Tuesday 3rd December, 2019

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

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

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

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

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

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

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

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

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

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

Monday 2nd December, 2019

Court is not sitting today.

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

Disclosure of the following information was sought:

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

2. Name of Senior Investigating Officer.

3. Dates upon which they were appointed.

4. Date operational codename requested.

5. Date police operation commenced, concluded.

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

a. Date of first entry

b. Date of final entry

c. Number of actions

7. Number of officers deployed on the operation.

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

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

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

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

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

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

Friday 29th November, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Surveillance on 10th June 2014:

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

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

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

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

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

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

Thursday 28th November, 2019

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

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

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

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

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

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

Wednesday 27th November, 2019

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

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

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

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

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

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

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

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

Tuesday 26th November, 2019

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

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

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

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

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

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

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

Monday 25th November, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo Credits: Kerry Perkins

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

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© Neil Wilby 2015-2019. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Chickens come home to roost

On 3rd February, 2019, during a pre-trial hearing held in Bradford Combined Court Centre, a barrister, Olivia Checa-Dover, made several quite remarkable submissions to the judge, His Honour Neil Davey QC.

One of those was to the effect that West Yorkshire Police had, incredibly, instructed her to say they did not know where to locate one of their former officers.

More experienced, right-minded counsel might have told the instructing solicitor, Alison Walker, Deputy Head of Legal Services at WYP, not to place her in such a compromising position.

At the final hearing of a controversial, high profile civil claim, seven months later, Miss Checa-Dover denied making such a submission. The transcript of those earlier proceedings will tell a different story, as does the contemporaneous reporting of them, that has stood unchallenged by WYP, and their legal team, since its publication (read in full here).

The man in question, Mark Lunn (pictured above), was the lead investigator, and the only officer working full time, on a police operation codenamed Thatcham: The largest fraud investigation in WYP history, and one that ultimately led to the arrests of 91 men, and convictions for 45 of them, over ‘crash for cash’ insurance claims.

He was the arresting officer of a number of those men. One of which was a Bradford doctor, Abdul Rashid, who ran two general practice surgeries and a private medico-legal practice in the city.

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Dr Abdul Rashid, arrested by Mark Lunn in March 2012

On 7th March, 2012, Lunn turned up at the doctor’s home with fifteen other officers at 6.15am. His wife and three children were asleep when the knock was made.

Dr Rashid was not, subsequently, charged with any offence and he had issued a civil claim against WYP on the grounds that his arrest and detention by the police was unlawful. As such, Lunn was at the very centre of those legal proceedings and the police were doing all they could to justify not producing him as a witness.

The reason the police say they ‘couldn’t locate’ Lunn is because he had, by a catalogue of dishonest actions, tainted Operation Thatcham and placed the entire investigation in jeopardy. If this was revealed by way of cross-examination of Mark Lunn, in open court, the public and the press would come to know that the 45 ‘crash for cash’ convictions are, very arguably, unsafe.

Appropriate disclosure of Lunn’s misdemeanours would have also greatly aided Dr Rashid’s claim for unlawful arrest.

It has only very recently been discovered, by a painstaking journalistic investigation (read more here), that by November, 2012, the police knew about the extent, and effect, of Lunn’s wrongdoing and its devastating impact on Thatcham. They chose to conceal that disclosure from the Crown Prosecution Service, and the suspects’ criminal defence lawyers, and thus began a sustained and far reaching WYP ‘cover-up’ that is now well into its seventh year.

The first stage of that audacious cover-up was to conceal Lunn’s wrongdoing from all except a small group of officers who had been involved in the internal misconduct investigations.

The second stage was not to prosecute him for what appears, arguably, to be at least one criminal matter (a second offence of computer misuse and associated data, licence breaches) and to apply no disciplinary sanctions at the end of that process, so that the misconduct investigation would attract no undue attention amongst the rest of the police force (at that time, misconduct findings against officers were published on police notice boards every Monday). A prosecution of Lunn would have also blown the cover-up.

The third stage was to keep Lunn under the WYP cloak, and out of harm’s way, until Operation Thatcham suspects were charged and the prosecutions of the ‘crash for cash’ perpetrators, and beneficiaries, were in chain. He is regarded as a loose cannon and his record both in the police and, subsequently, bears that out.

The fourth stage was to allow him, in August 2013, to resign from West Yorkshire Police with little, or no, adverse disciplinary record that would be a barrier to future employment. A reasonable hypothesis is that a deal had been cut with Lunn on this basis: Salary paid, and pension preserved, for at least another year; no adverse notes on his Human Resources (HR) file (the court heard during the civil trial that Lunn’s HR file had been ‘weeded’ and that disciplinary records had gone missing).

There is no other reason that WYP could justify overlooking a catalogue of serious misconduct issues, compounded by the fact that there is incontrovertible evidence that he repeatedly lied to two senior officers when confronted by some of the misdemeanours.

Mark Lunn’s lying did not stop when he left West Yorkshire Police. Before he had even left the force his name had already appeared, according to Companies House, on the list of Directors of a firm called Quo Vadis Investigation Services Ltd (QV). His biography on the company website was a fiction and he was forced to resign from QV after less than 3 months service. Lunn’s ‘success’ on Operation Thatcham was, apparently, the leverage for the appointment and the main feature of the bio, which included the claim he had been a detective for 20 years. The truth was he had been a CID officer for less than 5 years before forcibly removed from Thatcham, almost 2 years before the trial at which the men were convicted.

By 2014, Lunn was again attempting again to trade on Thatcham in a private venture. This time the vehicle was to be ‘Pennine Investigations‘. But a company of that name has never been registered and a Google search draws a blank.

In January, 2015 Mark Lunn started work at the Wakefield office of the Independent Police Complaints Commission (IPCC). But, true to form, that is not what it says on his LinkedIn biography. Enigmatically, he is recorded as working for the Home Office as ‘an investigator’ and is still listed as working there.

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Justice campaigners protest outside Pioneer House, Woolpacks Yard, Wakefield. The IPCC’s regional base in the North East.

This, on any view, was an extraordinary turn of events: An ex-police officer who has a string of misconduct investigations against his name turns up at the policing body charged with maintaining public confidence in the police complaints system. The IPCC purported to do that by oversight of the investigation of complaints made by members of the public against police officers. It is hard to imagine someone less suited to such a role as Mark Lunn.

These are just some of his misdemeanours that have been uncovered so far: He was subject to a large number of misconduct investigations whilst a serving police officer, including what appears to be a major covert operation codenamed Waffleedge; another covert operation codenamed Wademere; seriously compromised WYP’s largest ever fraud investigation; has twice been found to have misused police computers and software (many police officers are sacked after a first offence); appeared to obtain £183,000 from a major motor insurance company using a bogus company as an investment vehicle whilst a serving police officer; discussed details of a sensitive police operation with unconnected third parties; is an obsessive and persistent liar; a fantasist who invents competencies and past vocational experience on his CV’s and biographies: and has confessed, in police interview, to having a very bad memory.

Lunn’s complaints record includes allegations of unlawful arrest (four); assault (four); neglect of duty (three); incivility (two); oppressive conduct and harassment of a female; and false imprisonment.

It is also more likely than not he was part of the conspiracy, along with a number of other police and civilian officers, to conceal his wrongdoing from the Operation Thatcham suspects. The driving force for that conspiracy appears to be the present Head of WYP’s Homicide and Major Enquiry Team (HMET), Chief Superintendent Nick Wallen. He was a detective inspector in the force’s notorious Professional Standards Department at the time.

It is anticipated that, when the full story eventually emerges, the list of Lunn’s misdemeanours may well be longer. Two former high ranking WYP colleagues describe him as “thick as a brick” and, not uncontroversially, lacking in the necessary integrity and intelligence to have ever been selected as a detective. Their actual words were much more direct and colourful.

Examination of documents authored by Lunn, and some of his emails, appear to bear that out. He is also given to inaccuracies, wild exaggeration and disparaging remarks about members of the public, and in one case a criminal defence solicitor, where and whenever it suited.

So the BIG questions are, how did Mark Lunn wangle a job with the IPCC in the first place, and why did he want to conceal that appointment from his LinkedIn connections, first and foremost, and anyone else amongst the wider public, curious enough to know what the miscreant officer was up to?

A subsidiary question is why did he leave the IPCC (now IOPC) fairly recently with, apparently, no other permanent employment to go to? Lunn is currently self-employed as a jobbing builder and free range egg vendor in rural Huddersfield, where he lives. Connexions Property Maintenance, ‘a family run business owned by Mark Lunn’, trades on the fact that he is a former police officer.

In what appears to be a regular ploy, Lunn sought external funding for Golcar Free Range Eggs. He raised £50 out of a crowdfunding target of £3,000. Rather less than the £183,000 he sought from 1st Central Motor Insurance to fund his private investigation business in 2012.

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A further question is why did the police tell a circuit judge that they couldn’t locate him when he was working at the IPCC, amongst other former police officers, less than 300 yards from WYP headquarters in Wakefield?

Press enquiries have been made of the Independent Office for Police Conduct, the successor organisation to the IPCC. Contact has also been made with Derrick Campbell, the IPCC Commissioner who controlled the Wakefield office at the material time.

The Home Office and West Yorkshire Police have also been approached for comment. The latter has been asked why a circuit judge was also told by Miss Checa-Dover that Mark Lunn was not the man leading the Operation Thatcham, before he was forcibly removed. Evidence heard, and documents exhibited at the final hearing of the civil claim last month plainly showed that he was (read more here).

The Police Federation press office has also been contacted. The present Chairman of their West Yorkshire branch, Brian Booth, is a friend of Mark Lunn. Mr Booth has been contacted previously but has not replied.

Enquiries have also been made of West Yorkshire Trading Standards regarding Connexions Property Maintenance. The Trading Standards mission is to aim to ensure that the people of West Yorkshire are well informed and empowered consumers who have the confidence to interact with businesses safely and securely. Mark Lunn’s history of misrepresentation and his naked attempt to solicit business by purporting to be an honest, ethical, professional police office is concerning to say the least.

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A series of questions has been put to Mark Lunn. He has also been offered right of reply.

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Page last updated at 1620hrs on Thursday 3rd October, 2019

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: Telegraph & Argus

© Neil Wilby 2015-2019. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Did ‘bad apple’ taint the Thatcham barrel?

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

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

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

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

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

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

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

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

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

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

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Batley Police Station

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Andel Ltd was the business controlled by the late Ian Pogson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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DCI Paul Jeffrey pictured after the conclusion of the Opertion Thatcham trials

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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Photo credit: Huddersfield Examiner

© Neil Wilby 2015-2019. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

 

‘Calm down’ whilst my detective colleague assaults you

David Rogerson is an unpleasant, foul-mouthed bully, a view readily formed by most people viewing films of his interaction with Huddersfield businessman, Stephen Bradbury, outside of West Yorkshire Police’s prestigious divisional HQ at Havertop, near Featherstone.

It is also the view of at least two WYP colleagues who worked with him at Havertop and, having now retired, are relieved to be no longer in his orbit. But not, it must be said, Rogerson’s own Professional Standards Department, within WYP, or his staff association, the Police Federation. Or, indeed, the recently retired chief constable, Dee Collins. The latter, incredibly, signed off a promotion for Rogerson in the face of his odious conduct that could, and some argue should, have led to a criminal conviction.

On 18th June, 2015, Mr Bradbury had attended Havertop in order to gather information, including video footage and photographs for a forthcoming documentary with which he was concerned.

A short time after his arrival, he was approached by Sergeant Dale Wooffinden, and then surrounded by six other police officers (with nothing better to do), and asked to explain his presence outside the police station and his intentions. Mr Bradbury gave his explanation and produced a letter from Chief Constable Andy Trotter, of the Association of Chief Police Officers (now renamed the National Police Chiefs Council), as it related directly to members of the public and photography in and around police premises.

Sgt Wooffinden, and his restless posse, having read the letter, was satisfied with the explanation and allowed Mr Bradbury to go about his lawful business.

Soon afterwards, CCTV footage shows the arrival of Acting Inspector Rogerson, as he was then, before his subsequent promotion to substantive inspector, and a short interchange with Mr Bradbury, prior to the officer entering the secure staff car park, ended with Rogerson calling him “an arsehole”.

The police officer, is then captured on footage accompanying Detective Constable Lisa Redfern, emerging from the car park and walking towards Mr Bradbury. A plainly agitated Rogerson tells DC Redfern: “I’m going to arrest him“. He offers no explanation to his female colleague as to the suspicion of any offence. She, in turn, offers no challenge as to the lawfulness of such an action, or the likely consequences.

As Rogerson approached, Mr Bradbury says: “You are going to lock him up are you, is that what you said?”. He took out a hand-held digital camera in order to record what was happening. The police officer then claims that Mr Bradbury is “harassing him” before grabbing his camera, and then the lanyard attached to it, which was draped around his neck. An assault had clearly taken place, the camera had been damaged, and the officer was asked to stop. Rogerson ignored the request and proceeded to drag his victim towards the police station, falsely claiming he had been assaulted by Mr Bradbury.

At this point, Rogerson told Mr Bradbury he was under arrest, but released his grip on the camera and lanyard. He did not caution him, disclose the suspicion of any offence, or give any grounds for doing so. He simply fulfilled the promise he had made to his female accomplice a short while earlier.

At this point, DC Redfern intervenes but only, quite incredibly, to tell Mr Bradbury to “calm down”. She offered no challenge to her police colleague, as she is required to do under Police Regulations, and no protection to a member of the public subject to a pre-meditated, unprovoked verbal and physical attack. As a police officer she also should have known that the arrest was unlawful and there had been manifest breaches of the Police and Criminal Evidence Act, 1984. Her later accounts, during the complaints process that followed, suggest she did not. She was entirely supportive of Rogerson’s actions.

Mr Bradbury attempted to explain the prior exchange with Sgt Wooffinden and when the three ‘combatants’ reached the foyer of the police station, Rogerson marched off after refusing to provide details of his name and collar number. It is not clear if he subsequently spoke to Sgt Wooffinden, or not. Mr Bradbury’s camera was damaged and he had suffered abrasions and soft tissue injury to his neck.

DC Redfern failed to respond at all when asked if Mr Bradbury was under arrest. A point she failed to mention in her later account. As a result, he left the police station voluntarily, if not a little shakily, and was never subsequently detained or questioned about the ‘arrest’ by the police. Ms Redfern did not offer any first aid or make any enquiries about his well-being, or fitness to travel home. Another police officer who was sat in a vehicle nearby, and had witnessed the events involving Rogerson, declined to give either his own details, or those of his male colleague. Similarly, he made no enquiries about Mr Bradbury’s welfare.

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Detective constable Lisa Redfern

Shortly after the incident a complaint was submitted to WYP. It set out carefully, and comprehensively, the events that had taken place. The matters therein were not only supported by CCTV film obtained on Mr Bradbury’s Go-Pro camera, there were five cameras in the police station precincts that had captured the attack on Mr Bradbury and the events leading up to it.

After a delay of almost two months, the complaint was allocated to Sergeant Penny Morley of WYP’s notorious Professional Standards Department. This was a clear indication that the police were going to try to fudge the complaint and ensure that the six month limit for a prosecution of Rogerson was going to pass, whilst they prevaricated. Sgt Morley had, some years previously, been called out by a circuit judge, HHJ Peter Benson, following a trial in Bradford Crown Court during which she gave untruthful evidence. Taking the College of Policing‘s Code of Ethics as a guide, she should no longer be part of the police service, let alone sitting in judgment of other officers, after such a condemnatory judicial finding.

A decision was taken by Mr Bradbury, in conjunction with his police complaints advocate, Neil Wilby (the author of this article), to lay an information at Kirkless Magistrates Court. This is more commonly known as a private prosecution. The necessary documents, witness statement and copies of film and photographs, were filed at court on 14th December, 2015, just before the six month statutory limit expired. The allegations concerned assault and criminal damage.

West Yorkshire Police and the Police Federation were livid when they discovered that the Resident District Judge, Michael Fanning, had issued a Summons against Rogerson, in early January 2016, under Section 6 of the Prosecution of Offences Act, 1985. They did not believe that the threat to issue court proceedings, privately, against Rogerson would be carried through. It was the first of its kind in living memory of court staff at Huddesfield and Leeds.

A pre-trial review was held the following month in Huddersfield and the Federation sent Nick Terry, a partner with Burton Copeland solicitors in Manchester, to try and have the case dismissed. Even with support, by way of an email from the District Prosecutor of the Crown Prosecution Service, Malcolm Christy, on the morning of the hearing, the judge was unpersuaded by Mr Terry’s increasingly desperate arguments, and those of the CPS rendered by email, and the matter was set down for trial on 16th April, 2016. Mr Bradbury, having represented himself at the first hearing, then appointed a leading local solicitor advocate, Michael Sisson-Pell, to prosecute the case on his behalf.

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District Prosecutor Malcolm Christy failing to appease Stephen Bradbury over his ‘back door dealings’ with WYP.

Three days before the trial the CPS notified the court that they were taking over the prosecution for the sole purpose of discontinuing it. Mr Bradbury was not notified until the day before the hearing. The Deputy Head of CPS Yorkshire and Humber Region, Andrew Penhale, said that whilst the prosecution did not meet the public interest test, the evidential threshold was satisfied and there was a reasonable prospect of a conviction against Rogerson.

Smiles and handshakes all round at the police and Federation HQ in Wakefield, but Mr Bradbury was left with a £600 bill for legal fees (which Mr Sisson-Pell had very kindly reduced to the bare minimum) for which the CPS and the police steadfastly refused to reimburse Mr Bradbury.

The complaint that the CPS were ‘in thrall’ to WYP, and the Federation, did appear to have some merit. A review of the decision not to prosecute Rogerson also failed. As did Mr Bradbury’s entreaties to the CPS regional head, Gerry Wareham. Approached for comment about this article, Mr Wareham said: “Our job is to take over prosecutions like this one [Mr Bradbury’s] that have no merit”. Which flies in the face, completely, of everything the CPS has written and reported about the case previously. Not least that it met the evidential test and that a conviction was likely.

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CPS lawyer Gerry Wareham who has attempted to re-write history over the private prosecution of A/Insp Rogerson

WYP’s PSD then dragged their heels for another two years before finalising the complaints against both Rogerson and Redfern. They, of course, found nothing wrong and both escaped any meaningful sanction. Rogerson was given words of advice after a misconduct hearing and, of course, promoted. Redfern’s alleged misdemeanours were dismissed out of hand. The misconduct hearing was, bizarrely, chaired by Inspector Richard Close, an officer who had acted adversely against Mr Bradbury several times over the past six years, including being a central player in a well-organised ambush and arrest outside police HQ in Wakefield. A malicious prosecution of Mr Bradbury followed, but it didn’t get beyond ‘half-time’ at the nearby Magistrates Court as District Judge Day threw the case out. Gerry Wareham is curiously silent on that CPS debacle.

Vigorous protests to Dee Collins, were, disgracefully, brushed aside in the face of the most compelling evidence against Close. Including the fact that Close had not seized relevant filmed and photographic evidence, including the clip embedded in this article and pictures of his injuries and the damaged camera. Or, obtained witness statements from either Mr Bradbury or Sgt Wooffinden. It was a classic West Yorkshire Police ‘cover-up’.

But the last word went to Mr Bradbury, via his solicitor Iain Gould of DPP Law in Bootle. Letters before claim were drawn up regarding this and a number of other incidents in which Mr Bradbury was adversely affected by the unlawful actions of West Yorkshire Police and he was awarded £13,750 in compensation. The out of court settlement that meant the police avoided having to air their dirty washing in public.

Two of the other cases that led to the compensation award are covered in a separate article on this site and can be read here.

The ambush of Mr Bradbury outside of police HQ and the subsequent shambles of an arrest, detention, investigation and prosecution is to be the subject of a further article on this website in the near future.

 

Page last updated: Thursday 25th April, 2019 at 1810 hours

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Photo credit: West Yorkshire Police In Action YouTube Channel

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