IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2017/0062

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPELLANTS REPLY TO RESPONDENTS

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.

Commissioners Response

2. It is not the purpose of these representations to argue the matter of the miscarriage
of justice or any of the other injustices which were set out in the Appellants
Appeal Grounds. However, the Commissioner appears to have responded in that
 context and so it is necessary to point out that those injustices were recorded
merely to provide some background.

3. The examples (Exhibits 1-5) supporting the Appellants Appeal Grounds were
only relevant for providing evidence that Humberside police was unjustified to
label requests vexatious on account of the volume of correspondence. They have
hopefully put the matter in context and it can be seen that in the circumstances
only those acquiescent enough to accept being told black is white, would have
been happy with their replies and not pursued more appropriate responses.

4. It also needs to be clarified in the Commissioners Response (para 48) that the
Appellants appeal grounds in respect of the second element has been significantly
misrepresented. Subparagraph (b) is as follows:

(b) The correspondence has not placed a burden on Humberside Police given
the brief responses provided, and the overall resources available to
Humberside Police.

The Appellant in fact argues at paragraph 12 (Grounds of Appeal) that there is

likely to be a greater impact on police resources if a crime is properly investigated
than if the force is required to handle a complaint because of its refusal to.

5. The Commissioners Response (paras 4-16) sets out a comprehensive legal

argument in support of the decision to apply the exemption. Because the FOIA
does not define the term vexatious the Response is based upon what appears to
be all the arguments developed in case law which could in some combination
contribute to determining that a request is vexatious. The Appellant submitted his
appeal grounds in defence of the unsubstantiated claim by Humberside police that
the volume of correspondence was intended as a means to burden the authority.

6. However, the Response does not, and cannot, rebut the evidence put forward by
the Appellant (which was by no means exhaustive) that the reasons for the volume
of correspondence arose above all else because issues had been improperly dealt
with by the force.

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7. The analysis demonstrates the ease with which Section 14 FOIA can be applied
from the many elements considered to constitute a vexatious request. It is possible
that the FOIA does not define or give guidance on the interpretation of the term
vexatious because the procedural exemption has purposely been included as a
last resort option for when a public authority views that complying with a request
would be problematic and none of the defined exemptions can be justified.

8. Notwithstanding all the evidence that the volume of correspondence complained

about by the police was invited by the force itself, a simple test might determine if
the Appellants 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 volume of correspondence/requests would not
have been vexatious.

9. 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 embarrassment of being unable to provide
evidence of something it has not done (but claimed it has).

10. The Commissioner considers at paras 53-54 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.
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 are exploited in
these proceedings to help persuade the Tribunal that the requests were vexatious.

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11. The Commissioner states without any regard for how inaccessible the justice
system is to someone unable to finance legal representation that the Appellant
either has, or has had an opportunity, to pursue his allegations via other more
appropriate forums including the relevant court proceedings.

12. Notwithstanding the disadvantage court proceedings cause the unrepresented

person, the Appellant has documented in his background information that he did
not attend a hearing as he did not consider the presiding judge to be a fit and
proper person to hear the case. The Tribunal will probably be unable to consider
this matter, however, the Appellants overall concerns about Grimsby Magistrates
court from his experience over a number of years is well founded [Exhibit A-1].

13. The Commissioners assertions about the Appellant having had an opportunity to
pursue his allegations via other more appropriate forums seems to support why
there has not been seen any evidence to demonstrate that Humberside Police and
the courts actions have been unreasonable. Though the Commissioner has only
generalised and provided no supporting evidence the exact opposite is true about
the Police and the courts actions.

14. It was not reasonable for the police to refuse to deal with the allegations made by
the Appellant that witnesses falsely accused him of an offence and backed up their
allegations by making detailed statements to the police on the grounds that
allegations of perjury are only investigated on request from the court. The
witnesses had committed criminal offences for which they were liable to
imprisonment for perverting the course of justice.

15. The force had been advised by its solicitor that the issues may have been appeal
points that could be raised at any subsequent appeal hearings and that
Humberside police do not investigate allegations of perjury unless a request to do
so comes from the court themselves. However, the view of the Crown
Prosecution Service publishes on its website under heading "Cases Involving
Allegations of Perjury" as follows:

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 "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."

16. The Crown court was unreasonable regarding the unreasonable actions of the
Magistrates' court by refusing the appeal on the spurious grounds that the
Appellant deliberately absented himself from trial and put forward no adequate
reason for the appeal being out of time. The appeal to the Crown court was out of
time because of the many weeks the Appellant spent corresponding with the
Magistrates' court and providing extensive evidence to support why it would be
appropriate to re-open the case under section 142 of the Magistrates' court's Act
1980. Representations contained in the application also justified why the trial was
not attended.

17. The judge refusing leave to appeal was ultimately responsible for the miscarriage
of justice by ensuring that the serious allegations were prevented from coming
before the Crown court. Had the appeal been heard it would have implicated all
the accused holders of judicial office, Police, CPS etc. etc. The miscarriage of
justice has been the price paid by the Appellant for the Judges loyalty to his
colleagues.

Conclusion

18. The Appellant has merely asked for information to potentially assist in taking
action that will not engage the police and is therefore of no consequence that the
Commissioner considers Humberside police has made its decision not to pursue
the Appellants allegations.

19. It is evident that none of the arguments on which the Commissioner seeks to rely
are of any assistance in justifying that the requests are vexatious. A fundamental
error has been made in judging that my requests have been submitted with a view
to venting dissatisfaction and seeking Humberside Polices further engagement in

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 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.

20. For the reasons set out above and Appellants Grounds of appeal the Tribunal is
invited to find that the requests had serious purpose and were therefore not
vexatious.

15 May 2017