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Reply ea20170161 redact


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Appellant’s Reply to Commissioner's Response to the Appellant’s grounds of appeal in accordance with rule 24 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009. Concerns requests for information made to Humberside police to obtain the number of times the phrase "YOU CANT MAKE ME" appeared in police officers witness statements. Humberside Police relied on section 14(1) (vexatious requests) of FOIA.

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Reply ea20170161 redact

  1. 1. IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER (INFORMATION RIGHTS) APPEAL: EA/2017/0161 BETWEEN: Appellant and THE INFORMATION COMMISSIONER Respondent APPELLANT’S REPLY TO RESPONDENT’S RESPONSE TO NOTICE OF APPEAL Introduction 1. This Reply is served in accordance with rule 24 of the Tribunal Procedure (First- tier Tribunal) (General Regulatory Chamber) Rules 2009. Correction (Commissioner’s Response para 30) 2. The matter concerning the statement in the Decision Notice (‘DN’) which was corrected in para 30 of the Commissioner’s Response was material in persuading the Appellant who was reluctant to appeal another Commissioner’s decision, to in fact do so.
  2. 2. 1 3. As set out in the Commissioner’s Response, the confirmation that it was the same officer who used the phrase “You can’t make me” on two separate occasions has now been unconfirmed. The correction of course means that there is now some doubt whether or not it was the same Arresting Officer. 4. This doubt weakens to some extent the Appellant’s argument in respect of the grounds on which he relied to support there being a serious purpose and value to the request, but only in respect of disclosure that might suggest standard phrases being used for effect which are officer specific. There is still value in discovering the possibility of whether the force in general incorporates standard (not necessarily true) phrases into witness statements to the detriment of the defendant. It is especially of value to the Appellant as the witness statement produced by the Arresting officer in relation to his conviction was contrived and he disputes that the phrase “You can’t make me” was said as the statement records. The statement also failed to include relevant facts which would have without doubt undermined the case for the prosecution. 5. The question also remains as to why, after the anomaly has been highlighted, there has been no statement confirming whether or not it was the same officer involved in both cases. The Tribunal will no doubt consider establishing this point of some importance. Commissioner’s Response 6. The Commissioner considers at para 35 in the Response, that ‘the requests appear to have been submitted with a view to venting dissatisfaction’. The apparent basis for that view is that because matters have already been considered by Humberside police it must be concluded that any further requests are vexatious on the grounds that they intend to further express dissatisfaction with the outcome (para 41, Commissioner’s Response). The Commissioner is not at liberty to assert this and in doing so abuses the FOIA to deny the appellant his legal right to information on a prejudiced view that the so called proper channels are the only way to address the injustice and if those channels have been exhausted, even if wrongly, one has to resign oneself to it. If the Commissioner is not prepared to look into the alleged findings, or has no jurisdiction to question them, then it is unreasonable that they
  3. 3. 2 are exploited in these proceedings to help persuade the Tribunal that the requests were vexatious. 7. On this point however, the Tribunal has the opportunity to assess whether the Appellant, who has in the opinion of the Commissioner taken some of his concerns through the proper channels, had those concerns dealt with appropriately. The Open Bundle (‘OB2’) File 2, pages 5-113 contains the Appellant’s defence statement, appeal to the Crown court and papers in connection with a proposed private prosecution which are referred to in paragraph 41 of the Commissioner’s Response. The court’s rejection of these is clearly relied on to support ‘the Commissioner’s analysis that the request has little, if any, serious purpose or value’. 8. If it is evident that the court did not (or could not) deal with the issues or dealt with them unfairly, then to consider FOIA has been used as a means of re-opening matters that had been dealt with by the court, would be taking irrelevant factors into account to justify vexatiousness (Commissioner’s Response para 29). Defendant’s Statement - (pages 5-14, OB2) 9. It is plain that the Appellant was given no information about the criminal justice procedure he became involved in. The duty solicitor involved initially, who had been up-dated before the court hearing, had not replied leaving the Appellant to rely on guesswork. It was obvious even at that stage that there was no case to answer and enough evidence to suspect that the police, court and Crown Prosecution Service (‘CPS’) had colluded to proceed in circumstances not permitted by the Director of Public Prosecution’s Guidance on Charging. This was even before the Appellant had seen the information (witness statements etc.) contained in the CPS file handed him just minutes before he appeared before the bench. 10. The statement had clearly been produced by the Appellant and submitted to the Magistrates’ court, with him not knowing whether it was required or if it would comply with any relevant procedure rules or if it should have been copied to anyone other than the court. A letter contained in the CPS papers received by the
  4. 4. 3 Appellant in the manner described above on the day of the hearing (30 September 2015) was dated 22 September 2015 [Exhibit A-1] and specified the requirements of compliance to submit a witness statement: “If you supply a written defence statement to me and to the court within 14 days, any material which has not been disclosed at this stage will be further reviewed. The defence statement must comply with the requirements of section 6A of the CPIA:” 11. The letter’s main purpose however was for the CPS to disclose (as required) to the Appellant any prosecution material which had not previously been disclosed, and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the accused's case. That material up until the present was thought to be the witness statements which were blatantly inconsistent and known to the Appellant to be false. However, on producing this Reply for the Tribunal, a closer look at the CPS file indicates that the prosecution material which might reasonably be considered capable of undermining the case etc., was in relation specifically to one of the witnesses having a criminal record. 12. The letter continues to say regarding the statement (and material which has not already been disclosed) that any information provided would be reviewed by the CPS. Clearly the Appellant should have been served this and other letters and because they concerned a criminal matter he should have been alerted to any implications of not being legally represented. Crown Court Appeal - (pages 15-21, OB2) 13. The appeal to the Crown Court was submitted on 12 April 2016 which was outside the 21 day limit for an application to be accepted without permission to apply with an extension of time. The reasons for the application being made late, which were clearly stated was because the Appellant had embarked upon a time consuming process to provide evidence to persuade the Magistrates’ court that it would be appropriate that the case be reopened under section 142 the Magistrates' court Act 1980. This was continuous from 22 December 2015 when the Deputy District Judge, Andrew Pascoe passed sentence up until the 12 April 2016 when the Magistrates’ court made it clear that nothing more could be added and that the
  5. 5. 4 Appellant’s option was to appeal to the Crown court. It was also made clear that none of the mitigating evidence submitted by the Appellant, nor the unreliable content of the CPS file had been considered by the court in the conviction and sentence as the decision was based only on oral evidence. 14. New mitigating evidence had been obtained during the period that was taken up corresponding with the Magistrates’ court which was included in the grounds of appeal to the crown court. For example there was no CCTV coverage available even though it was confirmed that a total 7 cameras covered relevant areas. It was confirmed that HP made no request on the relevant day to retain the video footage and had therefore been overwritten. The witness statement were further analysed for inconsistencies which were found and included in the appeal along with the evidence mentioned about the CPS failure to serve documents which were a statutory requirement etc. etc. 15. Clearly as the evidence provides (page 22, OB2) the matter was not dealt with, and in any event the court’s refusal to allow the appeal was without question so unfair as to amount to an abuse of power as its decision and the reasons for it failed to take relevant factors into account. Therefore, for the Commissioner to have considered FOIA had been used as a means of re-opening matters that had been appropriately dealt with by the court in this instance to justify vexatiousness would be unfounded. Private prosecution - (pages 23-111, OB2) 16. The Appellant had taken the step of laying an information under section 1 of the Magistrates’ court Act for the purpose of bringing before the court the officer who wrongly stated perjury was not a matter for the police in relation to the Council employee’s false statement (Commissioner’s Response para 23 and page 35, OB2). He had done so as a last resort, since being met with a lack of will on the part of public bodies funded by the taxpayer to deal with matters like this on their behalf. It had been seen as an essential move to get the serious matter out in the open and hopefully taken seriously.
  6. 6. 5 17. The Appellant was mindful of the technical difficulties pursuing a private prosecution and so had intended making all evidence he held available to the justices' clerk for the case to be referred to the CPS under s.7(4) of the Prosecution of Offences Act 1985. 18. In this case again, as the evidence provides (page 113, OB2) the matter was not dealt with, and in any event the court’s decision against issuing a summons was made without any consideration of the evidence provided, which proved beyond doubt that the council had submitted perjured evidence to the court in order to defraud the Appellant. Whatever reasons the judge gave for his decision, they do not alter the fact that HP was negligent and at fault for considering perjury to be a civil matter which removes any doubt whatsoever that powers exercised by the police were to the detriment of the Appellant. 19. Also, the complaint made subsequent to the force asserting that perjury was a civil matter (page 36, OB2) was improperly dealt with as it had been wrongly assessed by the Professional Standards Department (‘PSD’) as being a complaint that could be dealt with under the Local Resolution (‘LR’) process (page 63, OB2). The complaint patently concerned the improper exercise of police powers (offence under s.26 of the Criminal Justice and Courts Act 2015) and any alleged conduct that could arguably fall within the definition of this offence must be referred to the Independent Police Complaints Commission (IPCC). This is confirmed in an IPCC Operational advice note (Mandatory referral criteria update, April 2017) on page 6 [Exhibit A-2]. 20. The complaint outcome letter also stated that the advice obtained from the Force Solicitors was that the issues MAY BE points that could be raised in an appeal and that ‘Humberside Police do not investigate allegations of perjury unless a request to do so comes from the court themselves’. 21. The Appeal against the outcome of LR (page 66, OB2) contested the decision that the complaint was suitable for LR and various other points. In reference to the advice obtained from the Force Solicitors regarding appeal points it was explained that any such appeal would involve civil proceedings and concern a challenge to the relevant legislation governing Council Tax administration and/or enforcement,
  7. 7. 6 therefore, representations involving criminal law would not be considered appeal points that could be raised in civil proceedings. 22. It was set out in the appeal that an officer commits an offence under s.26 of the Criminal Justice and Courts Act 2015 by failing to exercise a power for the purpose of achieving the detriment of another person1 . The criteria for whether the complaint could be dealt with by Local Resolution was therefore not met on this basis which was explained in the appeal. The Mandatory referral criteria update (see above para 19) has confirmed that in the circumstances of the complaint HP had erred in law by not referring the complaint to the IPCC and instead attempted to locally resolve the matter. 23. Representations supplementing the appeal were submitted to inform the PSD that the police do not have to be instructed by the court to investigate perjury, contrary to what the Force Solicitors had stated. The CPS explains the following on its website under the heading "Cases Involving Allegations of Perjury": "Where a judge or magistrate believes that some evidence adduced at trial is perjured s/he can recommend that there should be a police investigation. The absence of such recommendation does not mean that there is no justification for an investigation." 24. The assessment of the appeal to the LR outcome dated 8 June 2016 [Exhibit A-3] provides no evidence that the additional representations had been considered which is consistent with other assessments. For that matter there was no evidence of any of the representations being given careful consideration. Where appeal grounds had been taken into account, only elements which the force wished to focus on were considered. For example, the assessment centred on the Appellant’s assertion that it would be unreasonable to expect the victim to have resorted to appealing to the high court. This was rendered purely academic anyway because the matter, which was a relevant factor, concerned a criminal allegation which required police involvement (as opposed a civil appeal) but this failed to be considered in the decision. Therefore, HP had as well as unlawfully determining 1 Advising that the crime did not concern the Police has caused, and is still causing the Appellant injustice
  8. 8. 7 the complaint suitable to be dealt by way of LR also erred in law by failing to take account of relevant factors. Playing the system 25. The 8 June 2016 assessment outcome demonstrates perfectly how the force manages to exploit for its own ends the statutory complaints process governed by the Police Reform Act 2002. Item 1 of the report (Was the complaint suitable for local resolution?) states the following (emphasis added): “The person who passed the advice to the complainant would not be subject to disciplinary or criminal proceedings as a result and therefore the appropriate authority was correct in deciding that the complaint was suitable for local resolution.” 26. The above implies that the force engineered a technicality to exploit in order to determine the complaint suitable for LR. The Appellant specified that he wished ‘to submit a complaint about whoever within the force made [the] decision’. However, the recording (page 61, OB2) puts the complaint to be about an officer wrongly informing the Appellant that the matter which he wanted to report was a civil matter when he believed it to be criminal. The force allowed the complaint to proceed on the false premise that the person complained about was the messenger (not the person who would be subject to disciplinary or criminal proceedings) and failed to identify which officer had made the decision. 27. Although it is more than obvious from the Appellant’s defence statement, Crown court appeal etc. (pages 5–113, OB2) that the court did not deal with the issues or dealt with them unfairly it would be irrational even if it was not obvious from those papers for the Commissioner to make her decision on the say so of the court. It would be completely unreasonable for someone who has been wrongly convicted of an offence to be denied the right to consider in those circumstances that the matter was not closed. It is the case in any event that the Appellant would not consider the matter closed even if a judge had presided with the confidence to resist pressures of the state and be objective and whose experience was such that he would be considered immune to attempts to prejudice him.
  9. 9. 8 Abusing complaint process under the Police Reform Act 2002 28. Because HP’s preferred way of dealing with reported crime is to process it through the complaints and appeal process rather than taking appropriate action the Appellant has a catalogue of evidence of the force routinely abusing the system. The Appellant’s grounds of appeal has provided some examples but in respect of how the force avoids recording matters, it might be helpful if the Tribunal were made aware of HP’s tactics to highlight the Appellants continuing struggle. Dealing with a reported crime as though it were a complaint 29. The Appellant had submitted a complaint about civilian members of police staff impersonating police officers on a prescribed complaint form. HP successfully applied legislation under the Police Reform Act 2002 and avoided dealing with the matter on the grounds that the complaint was outside the permitted time limits. As a consequence, the Appellant reported the matter as a crime on the facility to report a crime on the force’s website [Exhibit A-4]. 30. As can be seen from correspondence that follows (Ex A-4), the force processed the matter as if it were a complaint and refused to record it on the grounds that it was repetitious. The decision could have been contested as there was an appeal right to the IPCC but there was no basis for appealing because the Appellant had reported a crime as opposed to making a complaint. 31. There was however a valid reason to complain about the officer who wrongly treated the reported crime as a complaint submitted under the Police Reform Act 2002. HP replied in a letter of 2 June 2017 to the new complaint about the matter which was submitted by the Appellant on 16 May 2016. The PSD managed to twist the facts in order to justify making the decision against recording the matter on the same basis, i.e., that the complaint was repetitious. There was an appeal right, again to the IPCC which this time the Appellant exercised because there were valid grounds to appeal. The appeal was submitted to the IPCC on 3 June 2016 which was upheld (7 July 2017); the reasons for upholding the complaint were the following:
  10. 10. 9 “It appears that the allegation made in your new complaint dated 16 May 2017 (1X/578/17) is regarding the handling of your crime report as a complaint (CO/1 /17). As such the allegations are concerning different officers and thus cannot be considered to be repetitive. Therefore, your appeal is upheld on this basis.” 32. The PSD was directed to record the complaint dated 16 May 2017 and contact the Appellant within 28 days. The force wrote on 1 August informing the Appellant that the process (i.e., assigning an investigating officer) would normally be completed within 28 days but if there was any delay he would be updated accordingly. A copy of the complaint as it had been recorded was enclosed: “The complainant states he contacted the Police wishing to report a Crime committed by Police Staff Warrant Officers purporting to be Police Officers who had arrested him, but the Police wrongly recorded a Complaint Against Police instead of raising a Crime Report in respect of persons impersonating police officers.” 33. The PSD’s next correspondence was received by the Appellant on 5 September informing him that the matter was still being progressed with the caseworker and would be informed within 28 days as to who the investigating officer would be or if there would be a further delay. The letter was undated, presumably because if it had been, it would have indicated that the PSD had breached legislation under the Police Reform Act 2002 or failed to correctly follow IPCC guidance. 34. The PSD’s most recent letter is dated 5 September and informs the Appellant that the complaint is considered to be vexatious and an abuse of process. The PSD again managed to twist the facts in order to justify its decision which in this case was to consider seeking authority to disapply the complaint. The force explains what this means which is that ‘the complaint can be dealt with in any manner deemed appropriate, which on this occasion would mean that no investigation would take place and the file would be closed’. 35. The Appellant has been given the opportunity to make representations as to why he believes that the complaint should be investigated, prior to the PSD making a final decision whether or not to disapply the complaint. However, this is just a formality and it is anticipated that the complaint will be dissaplied regardless of
  11. 11. 10 whether or not representations are made. If as predicted the force does disapply the complaint the Appellant will have an appeal right either to HP’s Appeal Body or the IPCC if the matter complained about would justified criminal or misconduct proceedings if proved. 36. As stated, the PSB has twisted the facts. It has relied on IPCC guidance which is irrelevant in the circumstances. The passage it quotes from the IPCC concerns when a complaint may amount to an abuse of procedure or constitute a vexatious complaint in the context of "complaints about the decision not to record a matter as a crime”. The Appellant’s complainant specifically concerned the force handling his crime report as a complaint. Citing repetition and abuse of process to justify non-recording of crime 37. HP exploits the complaints and appeal system in this example [Exhibit A-5] to justify its decision against recording the complaint by asserting that the matter raised is fundamentally the same as those alleged previously (Ex A-5, July 5 letter), when in fact the issues are entirely unrelated. After the usual hoops through which the Appellant had to jump the mater eventually reached the IPCC who upheld the appeal on both grounds relied on by the PSD. The complaint was therefore deemed neither repetitious nor an abuse of process by the IPCC. 38. The example should be of particular interest to the Tribunal because it raises a question about whether the various allegations which HP claims to have investigated had been, and if so, on what basis and to what standard 2 . Where allegations had not been investigated, the question also arises as to whether a decision against doing so had been properly justified. 39. For example, it is not credible with all the evidence that the police were provided, that its Head of Crime could have been anywhere near satisfied that all of the alleged crimes referred to in her letter of 19 November 2016 were unfounded [Exhibit A-6]. A similar improper decision making process could have accounted for the 19 November decisions as had justified why the allegations of the 2 The police are required by law to pursue all reasonable lines of enquiry when investigating a crime
  12. 12. 11 dishonest postal claim by the court service3 should not be investigated (i.e., that the allegations were repetitive). Considering LR appropriate and delaying outcome (paras 9 & 11-16 Appellant’s Grounds of Appeal) 40. The Appellant’s Grounds of Appeal explained that a police conduct complaint was wrongly considered suitable to be dealt with by way of LR and took 510 days to complete. An appeal was submitted to HP about its decision which it referred to the IPCC. The IPCC upheld the appeal [Exhibit A-7]. The Commissioner’s Response (Applicable law) 41. The Commissioner refers in paragraph 13 of the Response to the judgment (para 38) of the Upper Tribunal (Information Commissioner v Devon CC & Dransfield) in respect of ‘the value or serious purpose of the request’. The Tribunal may wish to note the advice which warns against jumping to conclusions about the lack of value or serious purpose also contained within that paragraph: “In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident.” 42. In paragraph 11 of the Commissioner’s Response in respect of ‘the burden imposed on the public authority by the request’ the Upper Tribunal judgment (para 29) is quoted which sets out clues that might give away whether a request can be properly characterised as vexatious. The subsequent paragraphs (30-33) however expand on the telling factors which it lists as the number, breadth, pattern and duration of previous requests. 3 10 items of post were claimed to have been sent by the court service to the Appellant, spanning the period from 19 December 2013 to 22 July 2016 (none were delivered but copies have been obtained since). The force associated the matter, for the purposes of invalidating the allegations, with matters raised in 2011 and 2014 which concerned allegations of fraud by Council bailiffs and Council Tax summonses issued en masse without proper monitoring. There was no connection whatsoever linking either of the previous issues with the allegations relating to the letters.
  13. 13. 12 43. It can be taken from this that the number, breadth, pattern etc., of requests may only point to a finding that a request is vexatious and can only assist the Commissioner come to a decision. What the Commissioner has to bear in mind above all else is whether a particular request is vexatious. This means an individual with a history of making numerous requests in quick succession that were all very wide-ranging over a protracted period (i.e., ticked all boxes) would be caused an injustice if a particular request was made which clearly had a serious purpose was found to be vexatious. Conclusion 44. Notwithstanding all the obvious reasons as to why the request has been made for a serious purpose, a simple test might determine if the Appellant’s motivation was vexatious rather than genuine. Assessing the likelihood that the Appellant would choose to deliberately annoy the force if the burden placed upon himself was much greater, it would be evident (if it was) that on the balance of probabilities the requests would not have been vexatious. 45. Conversely, a clue is given from the amount of work the force has dedicated to obstructing the requests as to why it has. It is clear that substantially more resources have been expended in the time and effort gone into withholding information. Engaging the Commissioner and Tribunal rather than simply providing what has been asked for suggests a cover-up, which is likely to be for the purposes of being saved the potential embarrassment of releasing the information. 46. It is evident that none of the arguments on which the Commissioner seeks to rely are of any assistance in justifying that the request is vexatious. A fundamental error has been made in judging that the Appellant’s request has been submitted with a view to venting dissatisfaction and seeking Humberside Police’s further engagement in matters that it has already considered. For what it's worth, the reason for asking for the information is as far away from being vexatious as it could possibly be.
  14. 14. 13 47. For the reasons set out above and Appellant’s Grounds of appeal the Tribunal is invited to find that the request did have a serious purpose and was therefore not vexatious. 12 September 2017