IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2018/00XX

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPELLANT’S GROUNDS OF APPEAL

Introduction

1. This is an appeal under section 57 of the Freedom of Information Act 2000 against three
1
Decision Notices FS50656398, FS50658389 and FS50667388 issued by the
Commissioner on 22 June 2017. These grounds of appeal are served together with the
appellant’s notice of appeal, in accordance with rule 22 of the Tribunal Procedure (First-
tier) (General Regulatory Chamber) Rules 2009.

Background

2. The appeal concerns requests for information made to Humberside police (‘HP’). A
summary is provided in the Commissioners Decision Notice (the ‘DN’) under ‘the
complainant’s view’, paras 16-20.

1
Paragraph 12 of the Commissioner’s Decision Notice: ‘Having considered each request individually her
reasoning when determining each of these matters has proved to be identical for each. Accordingly the
Commissioner has used a single decision notice to record her decisions.’
Alleged errors of law

 Misapplying the legal test in the judgment of the Upper Tribunal, IC v Dransfield
[2012] UKUT 440 (AAC), to arrive at a decision of vexatiousness

 Failing to adequately support the decisions

 Taking into account irrelevant factors

 Failing to take into account relevant factors

Grounds of Appeal

Considering generically a number of distinct submissions

3. The DN (para 14) has regard to the Commissioner’s guidance on dealing with vexatious
requests2 (the ‘Guidance’) in determining that the Appellant’s requests were vexatious.
The Guidance derives its authority from the Upper Tribunal, IC v Dransfield [2012]
UKUT 440 (AAC), (the ‘UT’), in particular the analysis of what may constitute a
vexatious request which is set out in paras 24-39 of the judgment.

4. The legal test in accordance with the analysis in the UT has been misapplied by the
Commissioner. If a public body is to apply the vexatious exemption it must be in respect
of the request specifically, not the requester. The fact that 3 separately submitted
requests have been generically considered is compelling evidence that the law has been
interpreted wrongly in order to deny the Appellant access to the information. This is
further reinforced by the fact that none of the submissions have specifically been
referred to individually by the Commissioner in the DN, other than for the purposes of
recording a summary of the requests.

5. The Guidance provides a number of indicators which may suggest a request is

vexatious. However, it is of central importance to be aware that a request, if clearly not
vexatious, can not be determined so merely because it can be linked to one or a number
of indicators (a request may contain all of the indicators and not necessarily be

2
https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious-requests.pdf
 vexatious). Factors are considered on the circumstances of each individual case in
reaching a judgment as to whether the request in issue is vexatious.

6. This is consistent with analysis in the judgment of the UT on which the Commissioner
relied to determine that the Appellant’s requests were vexatious. Though in the UT
judgment the “indicators” are referred to as “telling factors”.

7. The Commissioner’s DN relied on all of the ‘four broad issues or themes’ which the UT
deemed would be helpful in considering ‘whether a request is truly vexatious’.
However, the Appellant contends that the legal test has been misapplied (see below
paras 10-11).

8. The Commissioner’s DN (paras 33-34) focuses on ‘the burden on the police’ which it
links with the Appellant’s previous dealings with HP. The UT judgment (para 29)
quoted below sets out clues that might give away whether a request can be properly
characterised as vexatious.

“(1) The burden

29. First, the present or future burden on the public authority may be inextricably
linked with the previous course of dealings. Thus the context and history of
the particular request, in terms of the previous course of dealings between the
individual requester and the public authority in question, must be considered
in assessing whether it is properly to be characterised as vexatious. In
particular, the number, breadth, pattern and duration of previous requests
may be a telling factor.”

9. The subsequent paragraphs (30-33) however expand on the telling factors which it lists
as the number, breadth, pattern and duration of previous requests

“30. As to the number, the greater the number of previous FOIA requests that the
individual has made to the public authority concerned, the more likely it may
be that a further request may properly be found to be vexatious. Volume,
alone, however, may not be decisive. Furthermore, if the public authority in
question has consistently failed to deal appropriately with earlier requests,
that may well militate against such a finding that the new request is
vexatious.
 31. As to their breadth, a single well-focussed request for information is, all
other things being equal, less likely to run the risk of being found to be
vexatious. However, this does not mean that a single but very wide-ranging
request is necessarily more likely to be found to be vexatious – it may well
be more appropriate for the public authority, faced with such a request, to
provide advice or guidance on how to narrow the request to a more
manageable scope, failing which the costs limit under section 12 might be
invoked.

32. As regards the pattern, a requester who consistently submits multiple FOIA
requests or associated correspondence within days of each other, or
relentlessly bombards the public authority with e-mail traffic, is more likely
to be found to have made a vexatious request.

33. Likewise, as to duration, the period of time over which requests are made
may be significant in at least two ways. First, a long history of requests eg
over several years may make what would otherwise be, taken in isolation, an
entirely reasonable request, wholly unreasonable in the light of the
anticipated present and future burden on the public authority. Second, given
the problems of storage, public authorities necessarily have document
retention and destruction policies in place, and it may be unreasonable to
expect them eg to identify whether particular documents are still held which
may or may not have been in force at some perhaps now relatively distant
date in the past.”

10. Clearly 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.

11. Having established that the information sought would be of value to the requester or of
public importance then there would be no sense or justification to consider the analysis
of what may constitute a vexatious request set out in the UT judgment (paras 24-39).
Once a request has been determined to have a serious purpose, to proceed further, would
be misapplying the legal test to refuse it on the grounds that the requester himself is
vexatious (as opposed the request) or because the public body simply does not want to
disclose information that might be self incriminating.
 Burden

12. The DN records why the Appellant is perceived to have burdened HP with requests and
other correspondence over a period of several years in the context of paras 29-33 of the
UT. Notwithstanding the legal test which would have, if applied lawfully, not even
warranted these considerations, the Commissioner’s reasons revolved around issues
which were only relevant to one of the three requests, even though the criteria for
considering all three were identical. But putting all this to one side, the Commissioner
has not considered how much responsibility can be attributed to HP for the volume of
requests and correspondence due to the force improperly dealing with issues when they
were initially raised.

13. Para 30 of the UT (see above para 9) states that the volume alone may not be decisive,
but also if the public authority ‘consistently failed to deal appropriately with earlier
requests, that may well militate against such a finding that the new request is vexatious.’
So, if the circumstances did warrant applying the test (which they did not) it would have
been reasonable to conclude that the flow of correspondence could have been stemmed
if earlier matters had been dealt with appropriately. In Thackeray vs Information
Commissioner (EA/2011/0082) the Tribunal found that persistence was justified (para
26) so far as is relevant, as follows:

“The dogged pursuit of an investigation should not lightly be characterised as an

obsessive campaign of harassment. It is inevitable that, in some circumstances,
information disclosed in response to one request will generate a further request,
designed to pursue a particular aspect of the matter in which the requester in
interested.[...] It seems to us that Mr Thackeray was doing no more, in that chain
of requests, than pursuing a legitimate line of enquiry. The request was not one
that was so similar to the first request that section 14(2) could have been invoked
by the Authority, and it was sufficiently distinct from the other requests or chains
of request that we have identified that it may not fairly be characterised as the
simple re-working of earlier requests. Nor was it an attempt to place on the
Authority a burden of work with no corresponding value to the public in having
the information disclosed...”

14. Various failings have been highlighted throughout the Appellant’s protracted dealings
with the force which has increasingly warranted involvement of the Independent Police
Complaints Commission (IPCC)3. Much of the correspondence complained about by HP

3
Now ‘Independent Office for Police Conduct’ (IOPC)
 will constitute evidence documenting the Appellant’s continuing fight to have matters
properly dealt with which highlights failings, especially in respect of incorrect
procedures being followed when dealing with matters under the Police Reform Act4.
The IPCC finding it necessary to oversee the force, on account of its wholesale abuse of
the Police Reform Act suggests that as well as the Appellant’s private interest there is a
wider value in making the requested information publicly available.

15. In Marsh vs Information Commissioner (EA/2012/0064, 1 October 2012) the Tribunal

also found that persistence was justified. In allowing the appeal they commented (para
28) that:

“....consideration must also be given to the subject matter of the information

request under review, particularly where the persistence of its pursuit forms part of
the grounds for invoking section 14. Put at its highest, the pursuit of information
about serious wrongdoing by a public authority would justify a very great deal of
persistence, including “drilling down”, in a series of requests, into the detail
behind previous responses which may have been expressed in general terms....”

And, in para 30:

“We think it appropriate, and indeed necessary, for us to take into account this
evidence because it reinforces our own view, having gone through with Mr Marsh
the Council’s complete log of its communications with him, that the Central
Enquiry was not vexatious. We have demonstrated, in the history summarised in
paragraphs 12 to 23 above, how Mr Marsh pursued a legitimate concern on an
issue of some significance, at first with a degree of co-operation from the Council
and, when that was removed, by dogged, forensic investigation of the information
the Council provided to him or to the public. It was a campaign that led the
Council’s own Overview and Security Committee to investigate in 2008 and some
of its members to express concern about the way in which cost claims appeared to
have been assessed. There is also some suggestion that, having provided the public
with a budgeted £0.5 million increase in costs recovery, which it was then
unwilling or unable to justify when challenged by Mr Marsh, it simply refused to
engage with him on the subject and issued a refusal notice ... The issue under
consideration was also a relatively complex one... This provides further
justification for different strands of enquiry having been pursued in parallel and
investigated in some depth.”

4
See ‘Abusing complaint process under the Police Reform Act 2002’, paragraphs 28-40 of Appellant’s Reply
(EA/2017/0161) and relevant Exhibits (A-4 to A-6).
16. It is also important not to lose sight of the fact that the basis for determining the present
requests vexatious is HP’s claim that they relate to a long standing dispute about
Council Tax enforcement and ‘the complainant has continued to press matters long
after they have been adjudicated and dismissed and has therefore been unreasonably
persistent’. The Commissioner has considered irrelevant evidence presented by HP in
relation to 2 of the present requests because a miscarriage of justice, to which the
requests relate, could not conceivably be considered a continuation of the Council Tax
matters.

17. Even stretching the imagination to the point that pursuing the wrongful conviction could
be construed as continuing the theme of the Council Tax fraud, the Tribunal cases
referred to above have justified persistence if it is in the pursuit of serious wrongdoing
by a public authority or is a legitimate line of enquiry. It is worth noting that the
Commissioner must have been indifferent to the Appellant’s serious allegation that he
was set-up by the court, HP and CPS, as it was all that linked the otherwise distinct
subjects. Affirming that they were inextricably linked would indicate that officials
deemed it acceptable (rather than an abuse of position) to instigate the wrongful
conviction of someone, if the opportunity presented itself, as a means of satisfying a
grudge.

18. It may be considered an acceptable form of punishment by the various authorities;

however, all those who have participated surely must be liable to criminal prosecution,
which applies equally to a judge who finds a defendant guilty when the only evidence
available on which a determination could have been made was that which was clearly
unreliable and of questionable credibility.

Motive and Value / Serious Purpose

19. The Commissioner has relied not only on requests but has also focussed on the number
of complaints/correspondence that the Appellant has submitted over the years in
determining that the vexatious exemption applies. It would be difficult to deny that
matters highlighted by the Appellant concerning the systematic abuse of the Police
Reform Act will not have had a material impact in tightening up practices; not when the
relevant watchdog has deemed it necessary to monitor the procedure.
20. In other closely related proceedings brought by the Appellant (EA/2017/0062), the
Commissioner similarly used a single decision notice (‘DN2’) to record her decisions in
respect of a number of requests which were deemed vexatious because her reasoning
when determining each of the matters were identical. The Commissioner considered a
total five requests 5 in the related appeal to be a continuation of the Council Tax
enforcement matters going back to 2011 when only 1 request (FS50622654) could
conceivably have been considered to be linked. The Commissioner considered similarly
in the present appeal that all the requests were a continuation of the matters going back
to 2011 but only 1 of the 3 requests (FS506656398) had any connection. From an
aggregate of 8 requests deemed to be a continuation of the Council Tax enforcement
matters only 2 could be linked.

21. In respect of the related proceedings (EA/2017/0062) the Upper Tribunal is presently
considering an application (GIA/47/2018) for permission to appeal the First-tier
Tribunal’s decision to dismiss the matter. To reiterate, in that appeal there were five
individual requests, the second request set out in DN2 (FS50636574) was directly
relevant to HP’s Professional Standards Branch failing to oversee a complaint made as a
consequence of the miscarriage of justice and so related to the matter which the IPCC
subsequently became involved in. This would therefore be characterised as a request
having a wider public interest and certainly not one continuing a theme of Council Tax
enforcement.

22. The third request set out in DN2 (FS50636604) raised matters which could reasonably
have been considered to be of wider public value, namely of HP’s policy not to
investigate allegations of perjury unless the court requests or recommends it. This is
contrary to the view of the CPS (see below para 26.).

23. The request was submitted because in response to the conduct complaint regarding the
miscarriage of justice, the crimes which were reported by the Appellant about two false
witness statements made by members of the public had not been recorded. HP emailed
the Appellant on 3 December 2015 containing, so far as is relevant, the following:

“...Your complaint is being dealt with in accordance with the Police Reform Act.
Your complaint is being held sub judice at this time as there are outstanding

5
FS50622654, FS50636574, FS50636604, FS50637739 FS50650239
 criminal proceedings. The correct forum for you to challenge the evidence given
by any of the witnesses is through the court. It is not practice to investigate an
allegation such as you have made unless the magistrates or judge makes comment
about the evidence and recommends that the Force investigates the matter unless
there are other aggravating circumstances to make an investigation imperative. In
this case you have not provided any evidence, other than your opinion, which
would suggest that it is necessary at this time to carry out an investigation.”

24. As mentioned, the false statement allegations were made within a conduct complaint.
The force expressed that ‘it would be considered as an abuse of the complaints process
to investigate the allegation you have made under the Police complaints process as the
situation stands now’. The situation had changed by the time the crime was reported on
29 February 2016, which was via HP’s dedicated webpage for reporting a crime (i.e.
outside the Police complaints process). There was no acknowledgement from HP about
the reported crime which motivated the Appellant to submit the request relating to ‘who
or what department has dealt with or will be dealing with the crime’, (DN2
FS50636604).

25. Though the force never responded to the 7 March 2016 FOI request, it did later in the
context of the reported crime. However, the force reiterated the points made in the 3
December 2015 correspondence and referred to a letter which was in connection with
the allegations of the council submitting perjured evidence to the court. The letter of 13
January 2016 contained the following:

“I have sought legal advice from our Force Solicitors in respect of the points you
make.

I understand that this matter has been heard in a court of law. The advice I have
obtained is that the issues you raise may be appeal points that could be raised at
any subsequent appeal hearings.

Humberside Police do not investigate allegations of perjury unless a request to do

so comes from the court themselves.”

26. The Appellant could not be criticised for pursuing this. The witnesses were liable to
criminal prosecution for submitting false evidence and were being allowed to evade
justice because of HP’s policy. However, that is only one reason why persistence was
justified. The other being that the police do not have to be instructed by the court to
 investigate perjury, not in the Crown Prosecution Service’s view. Its website states
under 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.”

27. This would therefore be characterised as a request having a wider public interest and
again not one continuing a theme of Council Tax enforcement.

28. The fourth request set out in DN2 (FS50637739) was on the theme of false witness
statements (fabricating evidence) in relation to the Appellant’s wrongful conviction and
therefore clearly not one continuing a theme of Council Tax enforcement. The present
appeal, second request, set out in the DN (FS50658389) also related to the same
fabricated evidence in relation to the Appellant’s wrongful conviction. The Appellant
was entitled to know whether the witness statement in respect of the request was
‘tendered in evidence’ (presumably to the court) as the following declaration in respect
of the statement was signed by the witness:

“This statement, (consisting of 7 page(s) each signed by me) is true to the best of
my knowledge and belief and I make it knowing that, if it is tendered in evidence,
I shall be liable to prosecution if I have wilfully stated in it anything which I know
to be false or do not believe to be true.”

The statement was untrue, but more importantly the witness could not conceivably have
believed it to have been true. The witness therefore had wilfully made a false statement
which she submitted as written evidence to the police.

29. Any line of enquiry must be considered legitimate (and in the public interest) which has
the potential to bring to the fore the serious failings of a process which causes innocent
people to be wrongfully convicted and the guilty to evade the criminal justice system.
Therefore, as well as the Appellant’s private interest there is a wider value in making the
requested information publicly available which would justify persistence.

30. The request also has a wider public interest in respect of the systemic failures of police
and CPS staff disclosing evidence which received wide coverage in the national press
 recently and was the subject of a joint report in July 2017 by HM Inspectors of the CPS
and Constabulary. The witness statements were part of the information (see below para
32) which it is now safe to assume was collectively the ‘Initial Details of the
Prosecution Case’ which the CPS was obliged to disclose to the Appellant as soon as
was reasonably practicable after he had formally entered a plea of not guilty6 to the
charge which he confirmed to the police on the 4 September 2015.

31. The material was in fact not disclosed to the Appellant until 26 days after he had
formally entered a plea of not guilty. It was handed to him, in a bundle containing
witness statements and a collection of apparently meaningless computer printouts by the
usher, without explanation as to what it was or of its importance on 30 September 2015
minutes before the court hearing. Therefore the issue does not only highlight HP
proceeding to charge in circumstances where the law required no further action to be
taken (see below para 76).

32. A letter (to defence where there is material to disclose) dated 22 September 2015 was
discovered among the material after the conclusion of the proceedings7 which is now
known to have conveyed information pursuant to sections 3, 4, 6, 6A and 7A of the
Criminal Procedure and Investigations Act 1996 (the ‘CPIA’). Although dated 22
September, the accompanying schedule of unused material was dated 10 September so
had been compiled at least 20 days before the first hearing which the letter informed
would be on 30 September at Grimsby Magistrates’ Court. The content of the letter
specifically relevant to s.3 of the CPIA was as follows:

“I am required to disclose to you any prosecution material which has 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.”

33. The content of the letter specifically relevant to s.4 of the CPIA was as follows:

“Attached to this letter is a copy of a schedule of non-sensitive unused material.

The disclosure officer in this case is Mr K. PRESTWOOD.”

6
Under paragraph 10 of the Code of Practice accompanying the Criminal Procedure and Investigations Act 1996
(Code of Practice), in a magistrates’ court the prosecutor must disclose any material due to be disclosed at the
hearing as soon as possible following a formal indication from the accused that a not guilty plea will be entered
at that hearing
7
The Appellant only became aware of the CPS’ obligation after the conclusion of the proceedings as a
consequence of researching legislation relevant to criminal cases to support his claims of a miscarriage of justice.
34. The material referred to, up until relatively recently was thought to be the contents in
general, particularly the witness statements which were blatantly inconsistent and
known to be false. However, on one of the occasions that the Appellant has needed to
revisit the trial bundle, closer inspection reveals that the prosecution material which
might reasonably have been considered capable of undermining the case etc., related
specifically to one of the witnesses having a criminal record.

35. The content of the letter specifically relevant to s.6 of the CPIA was as follows:

“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..”

The letter also specified the requirements of compliance to submit a witness statement
pursuant to s.6A, subsequently advising that ‘if it does not comply with the section 6A
requirements I may not be able to identify material that should be disclosed’.

36. However, the Appellant had already produced a statement which explained in its
introduction that he had been kept in the dark regarding any procedure which might
have been required of him, implying he was relying on guesswork (which he was). This
was sent to the court on 30 September 2015 prior to the court hearing of the same date
hence before the usher handed him the CPS file. More to the point, the statement was
not sent to the CPS on account of the CPS’ failure to disclose to him the statutory letter
(dated 22 September) provided for under s.3 (1)(a) of the CPIA. Section 6 of the CPIA
provides that ‘The accused— (a) may give a defence statement to the prosecutor, and (b)
if he does so, must also give such a statement to the court.’

37. The Disclosure Manual published by the CPS contains operational instructions to
provide a practical guide to disclosure principles and procedures which builds on the
framework of the CPIA. The Attorney General's Guidelines On Disclosure which
largely mirrors this state that ‘disclosure is one of the most important issues in the
criminal justice system and the application of proper and fair disclosure is a vital
component of a fair criminal justice system’, adding:
 ‘The “golden rule” is that fairness requires full disclosure should be made of all
material held by the prosecution that weakens its case or strengthens that of the
defence.

This amounts to no more and no less than a proper application of the Criminal
Procedure and Investigations Act 1996...’

38. The failure amounted to an abuse of process and consequently the denial of a fair trial
and ultimately wrongful conviction. The statement produced by the Appellant should
have been sent to the CPS in accordance with s.6 CPIA and complied with the
requirements of s.6A (see above para 35). According to the Attorney General’s
Guidelines (para 18) the CPS was under a duty to write to the Appellant if it failed to
meet the requirements:

“...if no defence statement has been served or if the prosecutor considers that the
defence statement is lacking specificity or otherwise does not meet the
requirements of section 6A of the Act, a letter should be sent to the defence
indicating this.”

39. The statement may or may not have met the requirements of section 6A, but irrespective
of whether or not it complied, what crucially mattered was that the CPS had been denied
the opportunity to assess material that called into question the prosecution evidence. It
could well at that stage have resulted in the CPS discontinuing the case (Attorney
General’s Guidelines para 15). In respect of the witnesses (see paras 73-75), the police
should have already decided against taking further action on being satisfied that the full
Code test (evidential stage) was not met. However, this builds on that failure, and
involves the CPS breaching the CPIA to an extent that the abuse of process rendered a
fair trial impossible.

40. As a consequence of being unaware that a statement required sending to the CPS, the
Appellant was denied being informed of further rights he was legally entitled to under
the provision of the CPIA. The CPS was under a duty to look again at the material in
order to make an informed decision about whether any undisclosed material might
reasonably be considered capable of undermining the prosecution case etc., or whether
to advise that further enquiries were undertaken. Paragraphs 8.2 and 8.3 of the CPIA
Code of Practice states as follows:
 “Section 7A of the Act imposes a continuing duty on the prosecutor, for the
duration of criminal proceedings against the accused, to disclose material which
satisfies the test for disclosure (subject to public interest considerations). To enable
him to do this, any new material coming to light should be treated in the same way
as the earlier material.

In particular, after a defence statement has been given, or details of the issues in
dispute have been recorded on the effective trial preparation form, the disclosure
officer must look again at the material which has been retained and must draw the
attention of the prosecutor to any material which might reasonably be considered
capable of undermining the case for the prosecution against the accused or of
assisting the case for the accused; and he must reveal it to him in accordance with
paragraphs 7.4 and 7.5 above.”

41. The CPIA under subsections 2 and 5 of section 7A (Continuing duty of prosecutor to
disclose) provides as follows:

“(2) The prosecutor must keep under review the question whether at any given
time (and, in particular, following the giving of a defence statement) there is
prosecution material which—

(a) might reasonably be considered capable of undermining the case for

the prosecution against the accused or of assisting the case for the
accused, and
(b) has not been disclosed to the accused.

:::::::::::

(5) Where the accused gives a defence statement under section 5, 6 or 6B—

(a) if as a result of that statement the prosecutor is required by this

section to make any disclosure, or further disclosure, he must do so
during the period which, by virtue of section 12, is the relevant
period for this section;
(b) if the prosecutor considers that he is not so required, he must during
that period give to the accused a written statement to that effect.”

42. The CPS consequently made no disclosure in respect of the defence statement nor gave
to the Appellant anything in writing stating it was not required to. The content of the
letter (to defence where there is material to disclose) specifically relevant to s.7A of the
CPIA was as follows:
 “In accordance with my continuing duty to consider disclosure, I will review the
information you provide in the statement to identify any remaining material which
has not already been disclosed. The statement will also be relied on by the court if
you later make an application under section 8 CPIA. If you do not make a CPIA-
compliant defence statement where one is required or provided, or do so late, the
court may hear comment and/or draw an adverse inference.”

43. The CPS’ failure to serve the Initial Details of the Prosecution Case as soon as
reasonably practicable after the Appellant had formally entered a plea of ‘not guilty’ on
4 September was the cause of the defence statement not being sent to the CPS (unaware
of correct procedure). The effectiveness of the safeguards, enabled by the process to
ensure a fair trial, depended upon the correct serving of the defence statement.
Consequently, the failure sending it to the CPS at this stage contributed significantly to
the overall breakdown of the process which was not helped by the solicitor who was
acting for the Appellant abandoning the case without notification.

44. The false statement itself was clearly not the sole cause of the Appellant’s wrongful
conviction and so the processes, involving the police, CPS and courts, subsequent to his
arrest and imprisonment failed, amounting to the wholesale breach of the CPIA and
associated Codes of Practice.

45. The ultimate safeguard, which clearly failed was the court, as a judge has to be satisfied
so that he is sure of a defendant’s guilt. The court could not conceivably have been
satisfied that there was fair disclosure of the material which was capable of undermining
the prosecution case. The court had been denied the opportunity to assess material that
called into question the witnesses, and on that basis alone, the CPS could not have
credibly proved its case beyond reasonable doubt. According to a review8 commissioned
by Lord Justice Gross, then Senior Presiding Judge (emphasis added);

“The primary duty of the court is to actively manage a case following the entering
of a not guilty plea. This requires close scrutiny of the information set out in the
effective trial preparation form. The prosecution’s compliance with its disclosure
obligations must be considered and the defence must be encouraged to provide
sufficient information to progress the case at the first hearing, including the
provision of a defence statement.”

8
Magistrates’ Court Disclosure Review, May 2014 (Annex A, page 52)
46. The Appellant had formally confirmed on 4 September 2015 that a ‘not guilty’ plea
would be entered at the first hearing. Despite this, there is no evidence to suggest that
the court required proper disclosure being made sufficiently in advance of the hearing.
The schedule of unused material was not even a matter considered at the first hearing;
consequently no direction was made for further material to be disclosed. In fact no
matters at all were raised at the first hearing regarding disclosure, or the ‘effective trial
preparation form’. The prescribed form was required to be used by the parties, and the
court for case management, in accordance with the accompanying guidance notes.

47. The guidance notes explain under ‘the overriding objective’ that the purpose of the form
is to assist the parties and the court to comply with their respective obligations under the
Criminal Procedure Rules (‘CrimPR’) and Practice Directions for preparation for trial
in a magistrates’ court. The form is to be used in any case to be tried in a magistrates’
court in which a not guilty plea is entered. Where a not guilty plea is anticipated the
prosecutor must complete Parts 1, 2 and 4 of the form and serve it on the defendant with
the initial details of the prosecution case, or as soon after that as possible and in any
event before the first hearing (see CrimPR rule 8.2).

48. The form, which is contained in the ‘Initial Details of the Prosecution Case’ (see above
para 32) reveals that parts of it were completed though as stated there were no matters
raised at the first court hearing regarding the trial preparation form. The Appellant did
not know he would be unrepresented; this was confirmed to him just minutes before he
was called into the courtroom. The solicitor, who the Appellant assumed would be
representing him (and had been initially) was no longer acting in that capacity.
According to information obtained by the usher he was not entitled to legal
representation but it was not explained why. Considering all the circumstances,
paragraph 7 of the guidance notes (below) leaves no doubt as to the fact that the court
had fallen far short of meeting its obligations:

“Before the first hearing (even if only very shortly before) or, if the court allows,
during the first hearing, the defendant must complete Parts 1, 3 and 4 of the form,
unless the court otherwise directs. The court may require a defendant who intends
to plead not guilty to complete those parts of the form before calling the case on
for the first hearing. At that hearing, at which the not guilty plea is taken, the court
then will have before it relevant information on the basis of which to give
directions for an effective trial. An unrepresented defendant may need to be
excused completion of the form before the hearing. He or she may need to be
 taken through it by the court instead, and the relevant information gathered in that
way.”

49. It should be sufficient that the form was not considered at all by the judge to conclude
that the court had not complied with its obligations, but it would be helpful to provide at
least one example which demonstrates how the failure contributed to unfair proceedings.
Part 5 of the form is for the court to record its decisions and directions for an effective
trial. One of the considerations (para 13.9) deals specifically with directions by the court
prohibiting the defendant (in person) from cross examining the witnesses. A space is left
for the court to insert the name(s) of the witness(es) whom the defendant has been
prohibited from cross examining and another for the solicitor who the court appoints on
the defendant’s behalf.

50. The Appellant was told by the judge at the first hearing on 30 September 2015 that he
was prohibited from cross examining the witnesses. He was also told that if he had no
solicitor (or did not appoint one) the judge would appoint the same solicitor who had
initially acted for the Appellant9. There is no record of this on the prescribed form (it
was never filled out by the court) nor was it ever updated. Moreover, the Appellant at
the time knew nothing about the form and would not do so until his conviction prompted
research into the laws he was oblivious to at the time he was prosecuted.

51. The Appellant received directions in the post (1 October) confirming that he was
‘prohibited from cross examining two witnesses (Johnsons) in person’. He was also
informed that the trial would take place on 15 December 2015, but there was no revised
copy of the prescribed form nor was it referred to. For example it was not explained why
it was not addressed at the hearing nor brought to the attention of the Appellant that it
was required of him to fill out relevant parts. The courts only further contact before the
15 December trial was on 11 December 2015, which was to acknowledge an email sent
by the Appellant that day.

52. The Appellant had sent further evidence comprising; a conduct complaint made to HP
about the arresting officer; representations proving beyond doubt that perjured evidence
was adduced in a case (local authority) which the District Judge knew was so but to
9
The Appellant contacted the solicitor (21 September 2015) as he had been asked to and gave a comprehensive
update of what had happened since being wrongfully arrested. He was also informed about the first Magistrates’
court hearing which had been set for 30 September 2015. The solicitor did not reply, however, the Appellant was
informed just minutes before the 30 September court hearing that he was no longer acting for him.
 which he nevertheless turned a blind eye, and; correspondence between the Appellant
and HP predominantly concerning the refusal of the force to investigate his allegations
of perjury (both matters).

53. The Appellant asked for acknowledgement and to ensure the information was seen by
the relevant team for the hearing on 15 September and expressed categorically that he
did not consider the District Judge a fit and proper person to hear the case. The court
confirmed that the District Judge would be trying the case and a direction at the first
hearing prohibited the Appellant from cross examining the 2 civilian witnesses in
person. The court also confirmed that it had appointed a solicitor to conduct cross
examination on his behalf, but there was still no reference to the prescribed form.

54. It is unknown whether the Appellant would have been contacted with the information
about the case had he not submitted further evidence. Clearly if the ‘effective trial
preparation form’ had been dealt with by the court it is unlikely there would have been
any doubt about who would be trying the case. However, what is now apparent from the
accompanying guidance notes is that the Appellant was prohibited from cross examining
the witnesses in person, and an intermediary appointed on his behalf, under sections 36
and 38 respectively of the Youth Justice and Criminal Evidence Act 1999.

55. Whilst paragraph 13.9 of the prescribed form should be completed by specifying which
witnesses a defendant is prohibited from cross examining and who the court appoints to
do so, paragraph 13.8 leaves a space for inserting the date when ‘the court will discuss
ground rules for questioning’. The following explanatory note accompanies paragraph
13.8 on the prescribed form:

“If an intermediary is appointed for a witness or for the defendant, the court must
discuss the ground rules for questioning with the intermediary and the advocates
before the witness or defendant gives evidence. Sufficient time must be allowed
for this.”

56. The Appellant did not attend the 15 December hearing as he was certain there would be
no prospect of a fair trial because of the injustice he suffered in his previous case where
the same judge conducted the proceedings. He had already complained to the Judicial
Conduct Investigations Office and reported the judge’s professional misconduct as a
crime to the police and was therefore satisfied that his right to a fair trial would be
 prejudiced. It is reasonable to conclude that the research subsequently undertaken by the
Appellant which uncovered evidence of the court improperly dealing with the case
reinforces his assertion.

57. Putting to one side the court’s complicity, the failure having most serious consequences
was attributed to paperwork being improperly served resulting in the Appellant being
uninformed about the CPS’ and his own obligations in respect of disclosure, submitting
a defence statement and calling a defence witness etc. It is only since familiarising
himself with the legislation to fight his wrongful conviction that he is aware of the
extent to which the CPS and HP failed to discharge their duty of disclosure that led to
the denial of a fair trial, and as a consequence, has an insight into a process that was
alien to him at the time he was prosecuted.

58. The Appellant was denied knowing as a consequence of the failure of the CPS
complying with section 3 of the CPIA that he was entitled to call a witness. The content
of the letter since discovered in the trial bundle relevant to s.6C of the CPIA states as
follows:

“You are also required to give advance details of any witnesses you intend to call
at trial within 14 days, which may be extended on application. If you do not give
details, or do so late, the court may comment and/or draw an adverse inference.”

59. Had he been aware of his rights he could have enquired into what was entailed in calling
a witness with the view of calling one who was independent of those selected by HP.
For example, section 6C of the CPIA makes provision for someone wishing to call a
defence witness by giving the name, address etc., if known, or any information that
would assist identifying a proposed witness.

60. In fact, there was a potential witness who it is reasonably believed was in a similar
position to have given an account from a comparable perspective as the Js and Mr W (an
HP employee manning the front office). This person appeared to be awaiting Mr W’s
attention which if true meant he was potentially identifiable. He also appeared to have
no connection with the Js and on reflection the fact that the CPS papers contained no
statement in respect of this witness casts further doubt on the objectivity of the police
investigation and the CPS’ involvement.
61. It has also come to light through the course of producing these representations that the
CPS, in accordance with its obligations to keep under review whether or not cases
should go to trial, has a duty to assess the reliability of witnesses.

62. The Attorney General recommended in a report in 2004 that prosecutors should be able
to speak to witnesses for the purpose of clarifying or assessing the reliability of the
evidence and proposed the introduction of Pre-Trial Witness Interviews (PTWI) for this
purpose. The function of such interviews, the report stated, would be to:

“establish whether or not the evidence of the witness already provided in the police
statement is reliable, accurate or complete, so that a properly informed decision
can be made about the future of the case, including whether a charge should be
maintained or dropped.”

63. A Code of Practice, signed by the Director of Public Prosecutions, followed the report
(February 2008) to assist prosecutors assess the reliability of a witness's evidence etc.
The Code, as does the Pre-Trial Witness guidance which is to be read in conjunction
with the Code, specifies how any unused material generated must be dealt with. Both
the Code and Guidance state the following:

“The disclosure officer should be notified of any unused material generated

through this process and will record it on the appropriate disclosure schedule.

The record of a pre-trial interview will generally be unused material and disclosure
should be determined by the application of the appropriate statutory test(s). A
record of the pre-trial interview will normally meet these tests and - subject to the
application of public interest immunity - the recording of the interview will be
supplied automatically to the defence as unused material.”

The Guidance specifies in addition to the Code (in respect of supplying the recording to
the defence) that ‘the defence should be required to sign the undertaking’. However,
both sources state regarding when a witness declines to attend a pre-trial interview that
this (and the witness’s reasons) should normally be disclosed to the defence in
accordance with the prosecutor's disclosure obligations.

64. The aforementioned papers handed to the Appellant by the court usher contain no
evidence that any PTWIs were undertaken. A schedule contained in the papers, now
understood to be prescribed by the CPIA (s.23(1) Code of practice) itemises no unused
 material generated, either from a PTWI or a witness declining to attend one. The CPS
has never required the Appellant to sign such an undertaking, and in fact never made
any contact whatsoever regarding the case.

65. The explanatory leaflet (Qs & As) enclosed in the letter sent out to witnesses setting out
the purpose of the interview, clearly shows that the circumstances demanded that the
CPS secured information in respect of PTWIs and supplied it to the Appellant as unused
material (in respect of all witnesses who submitted written evidence). For example, the
following answers the proposed question, ‘What is a pre-trial witness interview’
(emphasis added):

“Prosecution lawyers have to decide whether or not cases should go to trial. In

order to do this they have to go through the evidence collected by the police and
make sure they understand it.

Sometimes it is helpful for the lawyer to meet you so they can make sure they
understand your evidence and that they have all the information they need from
you. For example, some evidence is very complex and you might be able to help
the lawyer understand technical or very detailed evidence, such as the exact timing
of events.

This will help them decide if a case can go to trial. If a lawyer decides that there is
not enough information or that it is not clear enough, they may decide that the case
will not go to trial....”

and, in answer to the question, ‘What sort of questions will I be asked’ (emphasis added):

“The prosecution lawyer will then ask some questions with a view to clarifying the
evidence contained in your witness statement... For example you may be asked
about what you saw, how clearly you could see it, or how definite you are about
the identification of the accused.”

66. Particularly, in respect of the inconsistent and conflicting evidence, the PTWI -
Guidance for Prosecutors specifies that:

“You should go through all the key witness statements and cross-refer them. You
should note who corroborates who and any inconsistencies or gaps in the
evidence.”

Annex B of that guidance (for prosecutors on conducting interviews) reinforces that the
interests of justice required thorough scrutiny of the witnesses:
 “Basic technique

Look for signs of exaggeration or over confidence. Probing questions may cause a
witness to modify his/her evidence. This course is absolutely necessary. It is much
better to know as soon as possible that evidence has been over-emphasised or mis-
stated – and try to ascertain the reason why - than leaving it till the witness gives
evidence at trial.... Closely questioning your witness can have considerable
benefits.... Ask them how they managed to see something?

Similarly, you should make sure that the evidence they can give is admissible. ....Is
it an assumption rather than known fact? Determine with the witness whether
he/she actually saw each little segment of the event he/she witnessed or has he/she
filled in bits from conversations with others?

Inconsistent evidence

At some point you may find that the evidence the witness is giving you is
inconsistent with their written statements or evidence given on an earlier occasion.
Listen carefully to the answer that has been given to you to ensure that it really is
inconsistent. As a last resort you may refer the witness to their statement and ask
them if they can explain the inconsistencies.

Conflicting evidence

You must be even more careful in dealing with evidence that conflicts with the
evidence of other witnesses. Where there is significant conflict between witnesses
that cannot be resolved by careful questioning, alternative accounts may be put to
the witness for comment...”

67. The doubt arising from the witness statements and conflicting material in the trial
bundle (see paras 73-75) along with the allegations being flatly denied by the Appellant
made it imperative that PTWIs were sought. The fact that none were considered
necessary when the reliability of the evidence was clearly in question confirms that the
CPS failed to act fairly and impartially, in the interests of justice and in accordance with
the law.

68. In his attempt to uncover the reasons for his wrongful conviction the Appellant had
made several FOI requests to the CPS, including the same one put to HP regarding the
false witness statement. This was obstructed with delaying tactics backed up with
dubious excuses by the CPS for being unable to deal with the request. This was enabled
further by the Commissioner (apparently prompted by the CPS) proposing that the
 process be restarted10. There was similarly (as was the case with HP) never the release
of information. Though all were escalated as complaints to the Commissioner, none
resulted in the issue of a Decision Notice.

69. Another of the requests concerned the 22 September 2015 letter (see above para 32).
The request is not one covered by the DN and only relevant here in as much as it draws
attention to the lengths that the CPS (and Commissioner) had gone to ensure that the
Appellant did not succeed in obtaining anything that would raise public awareness of
what has since been confirmed to be the systemic failures by the police and CPS to
disclose material to the defence. It should be borne in mind that the request was
submitted to the CPS before much of the research had been carried out by the Appellant
into the disclosure process (of evidence) which broadly falls under the CIPA, i.e., before
he had an appreciation of a process that was alien to him at the time he was prosecuted.
The request was made on 12 March 2016 as follows:

‘The letter which can be viewed by visiting the webpage in the link below, appears
to have been produced from a template used by the Crown Prosecution Service.

“LETTER TO DEFENCE WHERE THERE IS MATERIAL TO DISCLOSE

(MAGISTRATES' COURT)”

https://www.scribd.com/doc/304161015/Letter-to-Defence-Where-There-is-
Material-to-Disclose-Redact

The letter has been discovered several weeks after the trial took place which was
in among a bundle of papers containing what appeared to be largely irrelevant
computer printouts compiled by the Crown Prosecution Service.

The bundle, complete with letter dated 22 September 2015 was handed to the
defendant by a court usher only minutes before a court hearing on 30 September
2015.

As this is likely to be a generic letter used as standard in these matters I expect the
Crown Prosecution Service will hold information to enable disclosure of which
parties in such proceedings the letter should be sent, by what method and by whom
it should be served and at what stage of proceedings.’

10
Commissioner’s correspondence 25 January 2017: ‘You will recall that CPS told you on 4 November 2016 that
they were unable to locate the information you requested. Arising from information that emerged during the
Commissioner’s investigation CPS have now said that they would like to take a fresh look at your request,
essentially starting it again.’
70. A complaint was escalated to the Commissioner on 14 May 2016 because of the CPS’
failure to deal with the request. The Appellant queried the matter on 1 October 2017
after discovering he had no record of the request being allocated to a Case Officer to
investigate. The Commissioner was asked if it had been dealt with or overlooked
(original letter was attached). The response stated that the complaint had been dealt with
and confirmed that the CPS sent a letter on 13 September 2016 (this was attached).

71. The manager dealing with the matter stated he could not guarantee that any further
communications would receive a response, presumably to convey the message that the
Appellant was wasting his time by raising issues which had already been dealt with.
However, the letter (13 September) which was sent by the Commissioner related to a
different complaint, not the specific complaint that the Appellant queried. After further
correspondence querying the anomaly the manager exploited the Appellant’s
uncertainty (implied by his questioning whether or not the complaint had been dealt
with) to justify refusing to deal with the matter. The manager also refused to escalate the
matter as a service complaint when the Appellant expressed the wish to do so but
instead explained to him his right to complain to the Parliamentary & Health Service
Ombudsman if he remained dissatisfied with the service, which would need to be made
through his MP.

72. It is the Appellant’s view, with some justification, that the Commissioner’s role was to
assist the CPS in obfuscating the process because the Appellant’s prosecution clearly
fell into a category of cases where disclosure failures affected the right to a fair trial.
The Appellant’s motive is clearly not in question; there was a serious purpose for
requesting the information and his suspicion that there was a cover-up is well founded
as the continuing representations attest.

73. The Appellant’s wrongful arrest for the alleged offence was on 27 August 2015. All
witness statements, except that of Mrs J (the subject of this request DN FS50658389)
were obtained on that day. The Appellant was charged on 4 September 2015 by which
time Mrs J’s witness statement was obtained (1 September 2015). Mrs J was present
with her husband, Mr J on the day of the alleged offence, hence, her account was given
5 days after his witness statement (and all others) had been obtained. It is
unquestionably the statement of Mrs J (if it had been true) which would have most
satisfied the investigation that there was a case to answer in respect of the serious
 allegations. However, it was also Mrs J who had to the greatest degree committed
wilfully to providing an account of events which were knowingly false.

74. The Appellant had on 27 August 2015: (i) denied all wrongdoing; (2) reiterated his
denial later in interview; (3) highlighted the unsuitability/unreliability of Mr J as a
witness; and (4) remained voluntarily to assist (he knew CCTV footage could not have
incriminated him). Therefore, the circumstances even at that early stage gave ample
reason for HP to question the reliability of the evidence. Furthermore, the credibility of
the evidence had to be in question given the nature of the allegations and the alleged
offence was in the immediate vicinity of the police station. He had also stated in the
defendant interview (27 August) that he hoped there was CCTV footage as it would
confirm his account. Mrs J’s delayed witness statement attests further that there was no
case to answer, not only by virtue of her untruthfulness but also because it was an
obviously contrived account, constructed from knowledge gleaned over the 5 day period
she was given to produce it11.

75. The Full Code Test set out in the Code for Crown Prosecutors could not reasonably have
been considered to have been met. The Full Code Test required the CPS to be satisfied
that there would be a realistic prospect of conviction12 based on an objective assessment
of the evidence (paras 4.5 and 4.6 of the Code).

76. However, in accordance with the Director of public prosecutions (DPP) Guidance on
Charging (para 2), before referral to the CPS, the police must assess cases to ensure the
Full Code Test can be met on the available evidence. The Guidance requires that in any
case which cannot meet the evidential standard that the police take “no further action”.
It also deals with the consequences of police charging offences in circumstances not
permitted by the guidance, both in respect of the police and the CPS (para 22 of the
guidance).

11
See representations to Humberside Police: Appeal against the Local Resolution outcome (CO 432/15) under
sub-heading “time to get the story straight” (22 April 2017)
12
The CPS confirms that the case was reviewed in accordance with the Code for Crown Prosecutors and was
satisfied there was a realistic prospect of conviction (implying the Appellant’s conviction ratified their actions).
Representations which are in progress challenge this, bringing in obvious arguments such as the alleged
complicity of the police, courts and CPS and raising the report in July 2017 by HM Inspectors of the CPS and
Constabulary highlighting the widespread failures across the criminal justice system disclosing evidence.
77. Though the force proceeded to charge in circumstances where the law required no
further action to be taken (evidential standards patently not met), the CPS subsequently
failed to identify that the police incorrectly charged the case. Despite these failures, a
further safeguard (the proper disclosure of evidence) should have resulted in the
discontinuance of the case. Instead, the police failed to disclose clearly relevant material
which was likely to have proved the Appellant’s innocence, categorising such evidence
as ‘Clearly Not Disclosable’ (‘CND’).

78. The schedule of non-sensitive unused material discovered after the trial (see above para
32) listed at least two items which could potentially have undermined the prosecution
case or assisted the Appellant. Firstly, item 6 was described as follows and categorised
as CND:

“CCTV stills at Grimsby Police Station showing camera views confirming there
would be no CCTV covering location [the Appellant] was at.”

79. The Appellant had succeeded in obtaining information through FOI in between the trial
concluding in the Magistrates’ court and his appeal to the Crown court which brought
into question the claim that there would be no relevant CCTV coverage. For example, it
was confirmed that a total 7 cameras covered relevant areas and HP made no request on
the relevant day to retain the video footage. All footage which may have included
evidence to prove the Appellant’s innocence had therefore been overwritten. It is
unlikely with such extensive coverage of the relevant area by CCTV that there would be
nothing of relevance to the case.

80. Even if there was nothing that was considered capable of assisting the Appellant’s case
it would have been in the interest of justice for the evidence to have formed part of the
prosecution, not just listing it as unused material that was in any event classified as
undisclosable. In accordance with the CPS' continuing duty to consider and review
disclosure under the CPIA, it should have been required of HP to disclose all the
relevant video footage, which at the time the schedule was presented to the CPS, would
not have been overwritten13. However, the ultimate responsibility lies with the court as it
has a duty to consider the prosecution’s compliance with its disclosure obligations.
Secondly, item 7 was described as follows and categorised also as CND:

13
Camera footage is on a loop system and kept for 90 days
 “Image showing location [the Appellant] was seen to be at. Taken from unknown
mobile.”

81. Presumably, this refers to an image obtained from a photo taken by a mobile phone and
not considered by HP to be relevant to the case. The evidence might reasonably have
been considered capable of undermining the case for the prosecution or of assisting the
accused’s case if the image showed that the distance between the witness and defendant
was so great that the account could not reasonably have been relied on. It might even
have proved impossible to have verified events with the degree of detail described by
the witness and would in that case have confirmed that the witness had knowingly made
a false statement.

82. As in the case of the CCTV footage, it was the CPS and court’s duty to have requested
from HP the disclosure of the relevant material. The second bullet point under paragraph
3.1 of chapter 3 of the Disclosure Manual (see above para 37) states as follows:

“The officer in charge of the investigation has special responsibility to ensure that
the duties under the Code of Practice are carried out by all those involved in the
investigation, and for ensuring that all reasonable lines of enquiry are pursued,
irrespective of whether the resultant evidence is more likely to assist the
prosecution or the accused.”

83. The Appellant had stated that Mr and Mr’s J’s witness accounts were untrue. Clearly all
reasonable lines of enquiry had not been pursued. If they had it would have come to
light that the J’s witness statements were inconsistent as has been documented a number
of times, most comprehensively in the 22 April 2017 Appeal (see footnote 11).
Paragraph 3.2 (chapter 3 Disclosure manual) states that it is the chief officer’s ‘duty to
ensure that disclosure officers and deputy disclosure officers have sufficient skills and
authority, commensurate with the complexity of the investigation, to discharge their
functions effectively’. If the evidence was reviewed and deemed, as it was, fabricated
then the CPS had a duty to pursue the Js for perverting the course of justice, not turning
a blind eye and prosecuting the victim.

84. The fifth request set out in DN2 (FS50650239) asked for information about the force
solicitor with the objective to find out how much public money is used to fund people in
the legal profession to carry out a function which is not in the taxpayer’s interest. This
was again categorically not one continuing a theme of Council Tax enforcement.
85. What could not conceivably have been justified was HP and the Commissioner relying
on requests 2 through 5 in that appeal to be a continuation in any way of the Council
Tax enforcement matters going back to 2011. Only request 1 set out in DN2
(FS50622654) had any connection, the subject was entirely different for the others.

86. The present appeal, third request, set out in the DN (FS50667388) asked for all records
held by the force regarding two HP officers who arrested the Appellant at his home on
22 December 2015 in relation to the case for which he was wrongly convicted. Two
people who falsely claimed they were the police hammered persistently on the
Appellant’s door and coerced him into attending court. He was taken into custody and
told while awaiting sentencing that he would have access to the duty solicitor. However,
he was handcuffed and led to the court without seeing a solicitor where he was
wrongfully convicted by the Deputy District Judge.

87. He had faced difficulty establishing the identity of the two people who had arrested him
(he suspected they were not police officers) but it eventually transpired that the two
people were likely to be Warrant Officers employed by HP who are civilian members of
police staff. One of the officers claimed they were the police.

88. The Appellant would not ordinarily have been opened the door and only answered
because he expected it would be broken down having been misinformed that they were
police officers. They continued being indiscreet after the door was answered. The
Appellant was not guilty of any offence and had been set-up which made the fact worse
that one of the impostors was discussing the matter on the phone in front of neighbours
whilst the other physically dragged the Appellant by his clothing to his car and coercing
him into it.

89. This was clearly not continuing a theme of Council Tax enforcement. As far as the
public interest was concerned the request raised concerns about the criminal offence of
impersonating police officers. The Appellant notes that the request, which was made via
the whatdotheyknow website, has been hidden from public view which suggests that HP
has something it wishes to cover up.
 Harassment of, or distress caused to, the Humberside Police’s staff

90. The Commissioner has been persuaded, presumably from information provided by HP,
that the Appellant in his communications to the force has used inappropriate and abusive
or aggressive language (see §32 DN). This demonstrates a complete lack of
understanding by the Commissioner about just how much detrimental affect
miscarriages of justice can have on the mental health of those involved. Perhaps the
Commissioner believes the Appellant should be polite and show gratitude in his
correspondence to the force each time the injustice is increased in one of the ways
highlighted in these representations. HP should be aware about these detrimental affects
as its online form for reporting a crime asks under the ‘Further Details’ heading ‘Is this
affecting your mental or physical health?’. The Commissioner might be interested to
find out from the force how exactly it responds to someone who states yes to this
question.

91. HP should be aware of how much stress the recent injustices would have caused the
Appellant. However, there must also be taken into account a catalogue of negligence
and fault that has added to the stress over many years which can be attributed to HP
either directly or indirectly. HP has, rather than wishing to play-down the burden it has
imposed upon the Appellant and all the damage caused him, chosen to highlight it by
exploiting the backlash in the way it has to prejudice the Commissioner. It should be
obvious to anyone who is aware of the intransigence demonstrated by the force,
particularly over its failure to investigate the false accusations made against the
Appellant that a point had been reached where something had to give.

92. If the inappropriate and abusive or aggressive language alleged by the Commissioner
had aggrieved the force then presumably it would be thankful that the Appellant does
not have the means to appoint a lawyer to pursue the miscarriage of justice he has been a
victim of.

Taking into account irrelevant factors

93. In the present case, 2 of the requests relate to the miscarriage of justice which had
undeniably been caused by HP who has at all times obstructed every attempt by the
Appellant to get to the truth. Only 1 of the requests can be said to have directly arisen
 out of the ‘dispute of long standing between the complainant and Humberside Police’
which the Commissioner described in para 4 of the DN as follows:

“The matters relate to the alleged under-payment of council tax and to an

application by a local authority for a Liability Order against him. The Police have
determined that the council tax issues are civil matters but the complainant says
that they are criminal matters and that the Police have therefore not proceeded
correctly.”

In the related case, 4 of the requests concerned the miscarriage of justice. Only 1 of the
requests can be said to have directly arisen out of the dispute of long standing etc. which
the Commissioner described in para 4 of DN2 as follows:

“The matters relate to the alleged non-payment of council tax by the complainant
and to an application by a local authority for a Liability Order against him. The
police regard these as civil matters but the complainant says that they are criminal
matters and that the police have therefore not proceeded correctly.”

94. Disputes regarding police considering fraud a civil matter etc. were related, only insofar
as it was feasible that witnesses who produced false statements, were encouraged by the
force to assist a wrongful conviction of the Appellant to satisfy a grudge (para 19 DN).
The Commissioner clearly considered the case in the context of background information
– namely that which related to the ‘dispute of long standing’ (relevant only to one
request, FS506656398). Consequently the decision, in respect of the two other requests
is unlawful as the factors in determining it were clearly irrelevant.

Other matters

95. The Commissioner states that FOI ‘should not be used to vent dissatisfaction with
matters which have already been concluded or as an alternative to following the correct
legal appeal routes’ and that ‘the complainant has continued to use FOIA requests to
press matters long after they have been adjudicated and dismissed and has therefore
been unreasonably persistent’ (para 30 DN). Anyone reading the DN will be left
wondering what matters have been adjudicated and dismissed and will have no basis on
which to make an informed decision on whether the Commissioner is justified in
labelling the Appellant unreasonably persistent. Fairness demands that whatever is
recorded in the DN is explained.
96. 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 the requests have been submitted with a view ‘to vent
dissatisfaction with matters which have already been concluded’. The IPCC has taken
over a complaint into the matter in which HP wrongly dealt with by Local Resolution
and had delayed its outcome by taking hundreds of days to complete. There is some
question therefore as to whether these issues have in fact already been concluded.

97. The Commissioner states that “she has seen evidence of intransigence in the
complainant being unwilling and unable to consider there being any virtue in views and
interpretations other than his own” (para 33 DN). This is a spurious statement without
any reference to what is referred to and without any reasons supporting it. If the
Commissioner wishes to include such statements she should at least give some clue as to
what these views and interpretations refer to. In any event, two of the three requests (and
four of the five in DN2) relate to the Appellant’s miscarriage of justice and any
representations he has made regarding that are not ‘views and interpretations’, they are
quite simply fact.

98. For the reasons set out above the Tribunal is invited to find that the requests had serious
purpose and were therefore not vexatious.

30 January 2018