Report supplementing

Independent Office for Police Conduct (IOPC)

directed investigation

19 February 2018

Humberside Police Complaint: CO/432/15

IOPC: 2017/082079
Grimsby Magistrates’ court: 161500245442
Police/CPS Unique Reference Number: 16AY/2837/15
Criminal Cases Review Commission: 01304/2016

Introduction

1. This matter concerns a police conduct complaint submitted 8 November 2015 which was
initially dealt with by way of Local Resolution. The outcome (which was appealed and
referred to the IOPC) was provided on 3 April 2017. On completing the review, the IOPC
deemed the statutory conditions were not met for the matter to be suitable for local
resolution and directed the force to fully investigate the complaint, taking into consideration
further information such as evidence in support of alleged collusion between the police, CPS
and Courts.

2. The investigation must essentially identify all failings that led to the miscarriage of justice.
For the avoidance of doubt, the wrongful arrest, false imprisonment and alleged incitement
to commit perjury set out in the 8 November complaint form only part of the overall
injustice which is now evident needs to be investigated. The prescribed complaint form in
any event made it clear it would not be expected that the issues were comprehensively set
out initially. These matters by themselves should not have led to a wrongful conviction and
so the processes, involving the police, CPS and courts, subsequent to the arrest and

1
 imprisonment have failed. This document therefore focuses on a number of key areas
considered relevant for the respective public bodies to examine in respect of my complaint
and allegations.

3. In light of the systemic failures reported in the national press recently regarding disclosure
issues it is appropriate (in addition to the IOPC recommendations) 1 that the Criminal Cases
Review Commission (CCRC) looks again at this case. Although the CCRC rejected the case
for review, despite the appeal grounds unwittingly raising disclosure failures, these now
have been more clearly identified and set out in these representations. The Chairman of the
CCRC reportedly2 stated that “non-disclosure of material that could prove a suspect's
innocence is the 'biggest single problem’ affecting the right to a fair trial” so it is now very
much in the public interest that this case is reviewed.

4. The representations highlight the force proceeding to charge in circumstances where the law
required no further action to be taken (the evidential standards were 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 my innocence, categorising such evidence as ‘Clearly Not
Disclosable’. See below paras 58-64.

5. However, the failure having most serious consequences must be attributed to paperwork
being improperly served. As a result I was uninformed about the CPS’ and my own
obligations in respect of disclosure, submitting a defence statement and calling a defence
witness etc. It is only since familiarising myself with the legislation to fight my wrongful
conviction that I am aware of the extent to which the CPS and police failed to discharge
their duty of disclosure that led to the denial of a fair trial, and as a consequence, have an
insight into a process that was alien to me at the time I was prosecuted.

6. 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
1
IOPC letter upholding appeal against Humberside police (29 August 2017); ‘On a separate note it appears you may
also have complaints concerning both the Crown Prosecution Service (CPS) and the Court. As the [IOPC] has no
jurisdiction over these two formal bodies, please make your complaints directly to them’
2
http://www.dailymail.co.uk/news/article-5209339/Watchdogs-warning-evidence-buried-police.html

2
 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 review3 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.”

7. I 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,
which will be referred to later, was required to be used by the parties, and the court for case
management, in accordance with the accompanying guidance notes.

The Director's Guidance on Charging

8. I was charged with the offence on 4 September 2015 by which time a further witness
statement had been obtained by PC Mills 1978 (1 September 2015) from Mrs Johnson. She
was present with her husband, Arthur Johnson on the day of the alleged offence who had
produced his statement the same day (27 August 2015). Hence, her account was given 5
days after his witness statement (and all others) had been obtained. It is unquestionably the
statement of Mrs Johnson (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 Johnson who had to the greatest degree committed wilfully to providing an
account of events which were known to be false.

3
Magistrates’ Court Disclosure Review, May 2014 (Annex A, page 52)

3
9. I had on 27 August 2015: (i) denied all wrongdoing; (ii) reiterated that denial later in
interview; (iii) highlighted the unsuitability/unreliability of Mr Johnson as a witness; and
(iv) remained voluntarily to assist (I knew CCTV footage could not have incriminated me).
Therefore, the circumstances even at that early stage gave ample reason for Humberside
police 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. I had also stated in the defendant interview (27
August) that I hoped there was CCTV footage as it would confirm my account. Mrs
Johnson’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 it, see
22 April 2017 Appeal against the Local Resolution outcome (‘April Appeal’), under
heading: “time to get the story straight”.

10. For example, she had demonstrably exploited knowledge acquired regarding the alleged fly
undoing, i.e., she emphasised buttons knowing that Mr Johnson had already been discredited
by his false claim that he had witnessed the operation of a zip (false in respect of being
operated and a zip). This false claim had been brought to PC Blake’s attention in the
presence of the Johnsons shortly after the accusations were made. Mr Johnson, not wishing
to contradict himself, tactically omitted any reference to how the fly operated in his written
statement but Mrs Johnson in her formal account obtained 5 days later specifically referred
to a buttoned fly, thus exploiting the circumstances.

11. Another example pointing to Mrs Johnson’s account being contrived around events which
were confirmed prior to her witness statement was the established fact that there was no
evidence that I had urinated. Again, she had exploited knowledge acquired regarding this
i.e., that Mr Johnson had been discredited for falsely stating to Mr Warriner that he had seen
me ‘pissing up the tree’. In this instance she was able, in retrospect, to state that she had not
seen me urinate but emphasised that it appeared to her as if I was about to. Similarly as in
the previous example, Mr Johnson, with the benefit of hindsight hedged his bets by
including in his written statement that ‘it looked like he was going to have a wee against the
tree’.

4
12. The Full Code Test set out in the Code for Crown Prosecutors (s.10 of the Prosecution of
Offences Act 1985) 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
conviction based on an objective assessment of the evidence (paras 4.5 and 4.6 of the Code):

“4.5 The finding that there is a realistic prospect of conviction is based on the
prosecutor's objective assessment of the evidence, including the impact of any
defence, and any other information that the suspect has put forward or on which he or
she might rely. It means that an objective, impartial and reasonable jury or bench of
magistrates or judge hearing a case alone, properly directed and acting in accordance
with the law, is more likely than not to convict the defendant of the charge alleged.
This is a different test from the one that the criminal courts themselves must apply. A
court may only convict if it is sure that the defendant is guilty

4.6 When deciding whether there is sufficient evidence to prosecute, prosecutors

should ask themselves the following:

Can the evidence be used in court?

Prosecutors should consider whether there is any question over the admissibility of
certain evidence. In doing so, prosecutors should assess:

1. the likelihood of that evidence being held as inadmissible by the court; and
2. the importance of that evidence in relation to the evidence as a whole.

Is the evidence reliable?

Prosecutors should consider whether there are any reasons to question the reliability of
the evidence, including its accuracy or integrity.

Is the evidence credible?

Prosecutors should consider whether there are any reasons to doubt the credibility of
the evidence.”

13. 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

5
 the guidance, both in respect of the police and the CPS. Paragraph 22 of the guidance states
as follows:

“An offence charged by the police in circumstances not permitted by this Guidance
may amount to a breach of [the Police and Criminal Evidence Act 1984 (PACE)]. The
decision may be challenged at court and could be subject to judicial review
proceedings. It may give rise to liability under the civil law, especially if a suspect has
been detained in custody. Where a prosecutor having identified that the police have
incorrectly charged a case does not proceed in accordance with this Guidance, the CPS
may be in breach of PACE and may become subject to civil liability.”

14. The CPS confirms4 that the case was reviewed in accordance with the Code for Crown
Prosecutors and was satisfied there was a realistic prospect of conviction (implying that the
fact I was convicted after the trial ratified their actions). This of course is academic because
we are dealing here in circumstances where I have alleged that the police, courts and CPS
have been complicit in disadvantaging me to the greatest extent possible as a means to
succeed in falsely criminalising and defrauding me. A report of 17 July 2017 5 is also of note
which revealed routine failure of the police to disclose evidence that could assist the
accused, and in turn the CPS failing to challenge this and carry out their duty to consider
what should be disclosed to the defence throughout a case. However, even leaving this
aside, defending an alleged breach of the Code for allowing the case to proceed with no
realistic prospect of conviction (on the basis that I was convicted) would be unjustified for
at least two reasons.

15. Firstly, it is almost certain I was convicted for not attending the trial (not because the judge
was sure I was guilty). This is relevant because the point at which the prosecution was under
a duty to apply the full Code test (evidential stage) far preceded when it could have possibly
been aware that I would not attend the trial. It was not until 11 December 2015 that I
contacted the court expressing that I did not consider the District Judge ‘a fit and proper
person to hear the case’, which was three months after I was charged. Therefore, whoever
deemed there to be a realistic prospect of conviction was unaware that I would not have
attended the trial, and consequently, the absence could not have been a consideration.

4
Correspondence dated 3 May 2017 from the District Crown Prosecutor (CPS Yorkshire and Humberside)
5
Joint inspection by Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of
Constabulary which ‘found widespread failures across the criminal justice system when it comes to disclosure of
evidence’

6
 However, if it was known, it would have been the single justification for the CPS being
satisfied that there was the remotest possibility of a conviction.

16. Secondly, the only evidence available on which a determination could have been made was
that which was clearly unreliable and of questionable credibility (see above paras 8-12). As
the evidential stage of the full Code test could not have been met on the standard of
evidence, and because cases which do not pass the evidential stage must not proceed, then
the CPS clearly breached the Code for Crown Prosecutors.6

Procedure under the Disclosure manual

17. 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
Criminal Procedure and Investigations Act (the ‘CPIA’), Code of Practice and the Attorney
General's Guidelines. The second bullet point under paragraph 3.1 of chapter 3 of the
Disclosure manual 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.”

Or in the Code of Practice prescribed under s 23(1) of the CPIA, paragraph 3.5

“In conducting an investigation, the investigator should pursue all reasonable lines of
inquiry, whether these point towards or away from the suspect. What is reasonable in
each case will depend on the particular circumstances.”

18. I had stated that the Johnson’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 Johnson’s
witness statements were inconsistent as has been documented a number of times, most
comprehensively in the April Appeal. Paragraph 3.2 (chapter 3 Disclosure manual) states
that it is the chief officer’s ‘duty to ensure that disclosure officers and deputy disclosure

6
Para 3.4 of the Code for Crown Prosecutors specifies that the CPS must only start a prosecution when the case has
passed both stages of the Full Code Test

7
 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 Johnsons for perverting
the course of justice, not turning a blind eye and prosecuting the victim.

19. Supplementary to previous representations, the arresting officer PC Blake writes in his
witness statement the following in respect of making enquiries:

‘he instantly became aggressive and argumentative saying “ARE YOU TELLING ME
TO TAKE A SEAT, YOU CANT MAKE ME, OR ARE YOU ASKING ME”. I said
“Just take a seat, I’m asking you to” to which M1 replied “WELL I DON’T HAVE TO
STAY THEN,” I then said “Take a seat”...’

This conflicts with Mrs Johnson’s witness statement which described the same incident but
in the following terms:

‘The male became quite lairy and argumentative to the officer saying “ARE YOU
ASKING ME TO SIT DOWN OR TELLING ME”. The officer replied “I’M
TELLING YOU”. The male took a seat...’

Emphasis in both the above is true to how they appear in the witness statements.

Criminal Procedure and Investigations Act 1996 (CPIA)

20. In accordance with s.3 of the CPIA7 the CPS was obliged to disclose to me the prosecution
material as soon as was reasonably practicable after my plea of not guilty to the charge had
been confirmed to the police on the 4 September 8. However, I 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 my claims of a miscarriage of justice.

21. The material was in fact not in my possession until 26 days after I had formally entered a
plea of not guilty. It was handed to me, in a bundle containing witness statements and a
7
The prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the
accused and which might reasonably be considered capable of undermining the case for the prosecution against the
accused or of assisting the case for the accused
8
CPIA Code of Practice (paragraph 10.1)

8
 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.

22. A letter (to defence where there is material to disclose) dated 22 September 2015 was
discovered among the material after the conclusion of the proceedings 9 which is now known
to have conveyed information pursuant to sections 3, 4, 6, 6A and 7A of 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.”

23. 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.”

24. 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 I have needed to revisit the trial bundle, closer
inspection reveals that the prosecution material which might reasonably be considered
capable of undermining the case etc., relates specifically to one of the witnesses having a
criminal record.

25. 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..”

9
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.

9
 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’.

26. However, I had already produced a statement which explained in its introduction that I had
been kept in the dark regarding any procedure which might have been required of me,
implying I was relying on guesswork (which I 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
me the CPS file. More to the point, the statement was not sent to the CPS on account of the
CPS’ failure to disclose to me 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.’

27. The Attorney General's Guidelines On Disclosure which largely mirrors the Disclosure
Manual published by the CPS (see above para 17) 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...’

28. The failure amounted to an abuse of process and consequently the denial of a fair trial and
ultimately wrongful conviction. The statement I had produced should have been sent to the
CPS in accordance with s.6 CPIA and complied with the requirements of s.6A (see above
para 25). According to the Attorney General’s Guidelines (para 18) the CPS was under a
duty to write to me 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.”

10
29. 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 above paras 8-12), 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.

30. As a consequence of being unaware that a statement required sending to the CPS, I was
denied being informed of further rights I 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.”

31. 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—

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 (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.”

32. The CPS consequently made no disclosure in respect of the defence statement nor gave to
me 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.”

33. The CPS’ failure to serve the Initial Details of the Prosecution Case as soon as reasonably
practicable after I 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 me abandoning the case without notification.

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

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35. As noted (see above paras 6-7), the final safeguard failed, as a judge must be satisfied so
that he is sure of a defendant’s guilt. The guidance notes to the ‘effective trial preparation
form’ 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).

36. The form, which is contained in the ‘Initial Details of the Prosecution Case’ (see above para
22) 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. I did not know I would be
unrepresented; this was confirmed to me just minutes before being called into the
courtroom. The solicitor, who I assumed would be representing me (and had been initially)
was no longer acting in that capacity. According to information obtained by the usher I 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.”

37. 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 give an example
of information that should have been logged, but was not, to demonstrate how the failure
contributed to unfair proceedings. Part 5 of the form is for the court to record its decisions

13
 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.

38. I was told by the judge at the first hearing on 30 September 2015 that I was prohibited from
cross examining the witnesses, also that if I had no solicitor (or did not appoint one) the
same solicitor who had initially acted for me would be appointed 10. There is no record of
this on the prescribed form (it was never filled out by the court) nor was it ever updated.
Moreover, I knew nothing about the form at the time and would not do so until my
conviction prompted research into the laws I was oblivious to at the time I was prosecuted.

39. I received directions in the post (1 October) confirming that I was ‘prohibited from cross
examining two witnesses (Johnsons) in person’, also that the trial would take place on 15
December 2015. There was no revised copy of the prescribed form nor was it referred to; it
was not explained why it was not addressed at the hearing nor brought to my attention that I
was required 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 I had sent
that day.

40. I had sent further documents comprising; a conduct complaint made to the police about the
arresting officer; proof confirming beyond doubt that perjured evidence was adduced in an
earlier case11, and; correspondence between myself and the police predominantly concerning
the refusal of the force to investigate my allegations in both matters of perjury.
41. I had asked for acknowledgement and to ensure the information was seen by the relevant
team for the hearing on 15 September and expressed categorically that I 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 me from cross
examining the 2 civilian witnesses in person. The court also confirmed that it had appointed
10
The solicitor was contacted (21 September 2015) as he had asked me to and was given a comprehensive update of
what had happened since my wrongful arrest. He was also informed about the first Magistrates’ court hearing which
had been set for 30 September 2015. The solicitor did not reply, however, I was informed just minutes before the 30
September court hearing that he was no longer acting for me.
11
An officer gave evidence in court which he knew to be false in Council Tax liability proceedings brought by North
East Lincolnshire Council. Indisputable evidence is held to support why the statement was untrue and why the
Claimant could not have believed it to have been true. Submissions in the same proceedings made it clear that
evidence was made with deliberate intent to deceive the court yet the “District Judge” nevertheless turned a blind eye.

14
 a solicitor to conduct cross examination on my behalf, but there was still no reference to the
prescribed form.

42. It is suspected that court would not have furnished me with the information about the case
but for the fact I had contacted the court to provide it with 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 I was prohibited from cross examining the
witnesses in person, and an intermediary appointed on my behalf, under sections 36 and 38
respectively of the Youth Justice and Criminal Evidence Act 1999.

43. 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.”

44. I did not attend the 15 December hearing as I was certain there would be no prospect of a
fair trial because of the injustice in my previous case where the same judge conducted the
proceedings. I 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 a right to a fair trial would be prejudiced. It is reasonable to conclude that the
research I had subsequently undertaken which uncovered evidence of the court improperly
dealing with the case reinforces my assertion.

45. It was confirmed after the sentencing hearing on 22 December 2015 which I forced to
attend12 that the solicitor was allowed to withdraw from the case because I did not attend
court for the Trial. I also learned in protracted correspondence with the court afterwards that
12
Two people falsely claimed they were the police and coerced me into attending court. I was taken into custody and
told while awaiting sentencing that I would have access to the duty solicitor. However, I was handcuffed and led to
the court without seeing a solicitor and wrongfully convicted by the Deputy District Judge.

15
 the solicitor who attended to cross examine the prosecution witnesses on my behalf ‘had no
option but to withdraw from the case’ as I was not there to tell him what questions to ask.

46. This flies in the face of the notion that a judge must be satisfied so that he is sure of a
defendant’s guilt, as does the fact that none of the mitigating evidence was considered in my
conviction, simply because I was absent at the trial. The court confirms this by the statement
it made which was that ‘the court makes its decision based on the evidence it hears’. If the
evidence raises doubt as to the guilt of the defendant, the fact that the defendant is not
present to read it out to the court does not alter the fact that there can be no basis for the
court to be satisfied beyond reasonable doubt that a conviction would be safe.

47. Regarding the solicitor being allowed to withdraw from the case, it was stated by the court
that if I had attended the trial I would have been able to give instructions to the solicitor to
enable him to challenge the evidence given by the prosecution witnesses. In accordance with
rule 23.2 of the CrimPR (Appointment of advocate to cross-examine witness) the court was
required to give directions enabling the prosecution material to be provided to the appointed
solicitor. He would therefore not have needed instruction, especially from someone with no
experience in interrogating witnesses. The idea that a professional specialising in criminal
defence could not consider the evidence and identify inconsistencies of the witness
statements and conflicting material in the trial bundle without my assistance is entirely
implausible. Sub paragraph 4 of rule 23.2 of CrimPR provides as follows:

“(4) Where an advocate is appointed by the court—

(a) the directions that the court gives under paragraph (3)(b)(ii) must provide
for the material to be supplied to that advocate, including by whom and
when it must be supplied; ... ”

48. Putting to one side the court’s complicity, the failure having most serious consequences, in
terms of the number of knock-on failures that resulted, was down to paperwork being
improperly served. They included for example being uninformed about the obligations of
the parties in respect of disclosure, submitting a defence statement etc. (see above para 5).
Knowing that I was entitled to call a witness was another right I was denied as a
consequence of the failure of the CPS complying with section 3 of the CPIA. The content of
the letter since discovered in the trial bundle relevant to s.6C of the CPIA states as follows:

16
 “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.”

49. Had I been aware of my rights I could have enquired into what was entailed in calling a
witness with the view of calling one who was independent of those selected by Humberside
police. 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.

50. 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 Johnsons and Mr Warriner.
This person appeared to be awaiting Mr Warriner’s attention which meant if it was correct
he was potentially identifiable. He also appeared to have no connection with the Johnsons
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.

Pre-Trial Witness Interviews

51. 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.

52. 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.”

17
53. 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.

54. The aforementioned papers handed to me 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 me to
sign such an undertaking, and in fact never made any contact whatsoever regarding the case.

55. 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 me 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.

18
 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.”

56. 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

19
 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...”

57. The doubt arising from the witness statements and conflicting material in the trial bundle
(see above paras 8-12) along with the allegations being flatly denied 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.

Items potentially undermining the prosecution

58. Under Operational Arrangements of the Director's Guidance On Charging (3. Police duty to
investigate offences) it is reiterated that any evidence or material likely to undermine the
prosecution case or assist the defence is provided to the prosecutor etc. (all reasonable lines
of enquiry). See below:

“The police will undertake effective early investigations to ensure that the key
evidence required to make informed decisions in cases is obtained as soon as possible.
All reasonable lines of enquiry should be pursued to ensure that any evidence or
material likely to undermine the prosecution case or assist the defence is provided to
the prosecutor and taken into account during any referral for investigative advice or
charging. This will enable relevant key evidence to be obtained, permitting the
building of a proportionate file. Compliance with the rigorous case management
regime under the Criminal Procedure Rules requires all key evidence to have been
provided to the prosecutor prior to the first hearing unless the charging decision has
been taken applying the Threshold Test.”

59. The schedule of non-sensitive unused material discovered after the trial (see above para 21)
listed at least two items which could potentially have undermined the prosecution case or

20
 assisted the defence. Firstly, item 6 was described as follows and categorised as Clearly Not
Disclosable (‘CND’):

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

60. I 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 the police made no request on the relevant day to
retain the video footage. All footage which may have included evidence to prove my
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.

61. Even if there was nothing that was considered capable of assisting my 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 the police to disclose all the relevant video footage,
which at the time the schedule was presented to the CPS, would not have been overwritten 13.
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:

“Image showing location [the defendant] was seen to be at. Taken from unknown
mobile.”

62. Presumably, this refers to an image obtained from a photo taken by a mobile phone and not
considered by the police to be relevant to the case. The evidence might reasonably have
been considered capable of undermining the case for the prosecution or of assisting my case
if the image showed that the distance between the witness and myself 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.

13
Camera footage is on a loop system and kept for 90 days

21
63. As in the case of the CCTV footage, it was the CPS and court’s duty to have requested from
the police the disclosure of the relevant material in accordance with paragraph 3.1 of the
Disclosure Manual (see above para 17).

64. It is relevant here to mention what is said in the Attorney General's Guidelines in respect of
material which comes to light after the conclusion of the proceedings under heading ‘Post-
conviction’. Paragraph 59 states the following:

“The interests of justice will also mean that where material comes to light after the
conclusion of the proceedings, which might cast doubt upon the safety of the
conviction, there is a duty to consider disclosure. Any such material should be brought
immediately to the attention of line management.”

65. The following is a summary of some of the failings which have contributed to my wrongful
conviction:

 Humberside Police failing to pursue all reasonable lines of enquiry and

proceeding with the case when it could not conceivably have met the evidential
stage test (witness statements were clearly unreliable and of questionable
credibility, i.e. false). breach of the Police and Criminal Evidence Act 1984

 The CPS failing to assess evidence to ensure that the charge is still appropriate
and where not, discontinue the prosecution, (improper case management). breach
of the Police and Criminal Evidence Act 1984

 Humberside Police failing to retain footage of a total 7 CCTV cameras covering

relevant areas in respect of the day of the alleged matter

 Humberside Police failing to obtain a statement from a witness who was in a

position to have given an account from a comparable perspective as the member of
police staff and the witnesses who submitted perjured evidence.

 failure of the CPS to properly serve material informing me of my rights if I wished

to call a defence witness. breach of the Criminal Procedure and Investigations Act
1996

 witness statements containing completely untrue accounts. liable to prosecution

under section 89 of the Criminal Justice Act 1967

22
  failure of the CPS to properly serve material considered capable of undermining
the case for the prosecution which also set out the statutory requirements to submit
a written defence statement. breach of the Criminal Procedure and Investigations Act
1996

 Magistrates court proceeding in my absence when there was an acceptable reason

for failing to appear. breach of s11 of the Magistrates' court Act 1980

 Magistrates’ court refusing to re-open the case as was required in the interests of
justice. breach of s142(1) of the Magistrates' court Act 1980

 Magistrates’ court refusing to hear the case again by different justices, as was
required in the interests of justice. breach of s142(2) of the Magistrates' court Act
1980

 Magistrates’ court improperly managing the case following the entering of a not
guilty plea. contrary to the Magistrates’ Court Disclosure Review, May 2014

 Magistrates’ court failing to assist parties comply with their respective obligations
in accordance with the ‘effective trial preparation form’. non-compliance with
guidance notes to the effective trial preparation form

 Crown court refusing permission to appeal on the spurious grounds that I had put
forward no adequate reason for the appeal being out of time and deliberately
absented myself from trial.

Issues surrounding the handling of the complaint

66. An investigation requires undertaking into the way the complaint has been handled to
establish who ultimately is accountable for the apparent joint failure of the Professional
Standards Branch (PSB) and the officer who was appointed to deal with the complaint
because I believe there must be criminal implications. The complaint was submitted to
Humberside Police on 8 November 2015. The complaint was formally recorded on 24
November 2015 and a copy of the record enclosed in a letter of 1 December 2015 which
explained that it is the practice to suspend investigation of the complaint until after the
proceedings or a decision is made to take no further action.

67. The ‘Complainant Report’ did not record the allegations made against the witnesses who
submitted perjured evidence, only the allegations against the police. I wrote to the force on 2
December 2015 and requested that it also investigate my allegations that the two members

23
 of the public had made false statements before the court. In its response of 3 December 2015
the force explained that the complaint was to be held sub judice 14 at the time as there were
outstanding criminal proceedings and stated that the court was the correct forum to
challenge the matter. It was also explained that it was not practice to investigate such
allegations unless the magistrates or judge made comment about the evidence and
recommended that the police force investigated the matter15, unless there were aggravating
circumstances16. It was also expressed that it would be considered as an abuse of the
complaints process if it investigated the allegation under the Police complaints process as
the situation stood.

68. The force wrote on 29 December 2015 stating that the court case against me had concluded
and the complaint no longer held sub judice and that the matter considered suitable for
Local Resolution. The file had been forwarded to Inspector Parsons at Grimsby Police
station to be dealt with. The criteria for whether a complaint can be dealt with by Local
Resolution are set out in paragraph 6 (sub-paragraphs 6 to 8) of Schedule 3 of the Police
Reform Act 2002 Act as follows (emphasis added):

“(6) A determination that a complaint is suitable for being subjected to local

resolution may not be made unless the following conditions are both met.

(7) The first condition is that the appropriate authority is satisfied that the conduct
complained of (even if it were proved) would not justify the bringing of any
criminal or disciplinary proceedings against the person whose conduct is
complained of.

(8) The second condition is that.......”

69. The complaint concerned my suspicion that the arresting officer had incited a witness to
commit perjury and had made a wrongful/unlawful arrest, leading to false imprisonment.
Humberside police could not conceivably have been satisfied that if proven the conduct
complained of would not have justified the bringing of criminal and/or disciplinary
14
An investigation may be suspended under Regulation 22 of the Police (Complaints and Misconduct) Regulations
2012 which would, if it were to continue, prejudice any criminal investigation or proceedings
15
This is contrary to the view of the CPS, 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.”
16
If false statements and other evidence which was clearly unreliable, inconsistent and/or of questionable credibility
could be taken into account then there were certainly aggravating circumstance.

24
 proceedings against the arresting officer complained about. It is almost certain therefore that
the complaint was wrongly considered suitable for Local Resolution deliberately in order to
delay and obfuscate the procedure. Mishandling the complaint bought Humberside police
over 500 days which is how long it took the force to deliver its Local Resolution outcome.

70. The events surrounding the delay will be referred to in more detail later but it will be first
examined whether the circumstances were appropriate for the decision to suspend the
investigation into the complaint in the context of the IOPC Statutory Guidance on the
handling of complaints - May 2015 (the ‘Statutory Guidance’)17. The Statutory Guidance
(page 62, Power to suspend an investigation), states in respect of a police force suspending
an investigation:

“An appropriate authority may suspend an investigation or other procedure which

would, if it were to continue, prejudice any criminal investigation or proceedings.
Having consulted with the appropriate authority, the [IOPC] may direct that the
investigation or procedure shall continue if it is in the public interest.

Regulation 22, Police (Complaints and Misconduct) Regulations 2012”

71. The necessary considerations are provided in paragraph 9.52 of the Statutory Guidance to
determine whether such prejudice arises. Emphasis is on there being “specific, identified
prejudice (and that prejudice should be significant)”.

72. If the power to suspend does arise the IOPC then requires a balancing exercise to be carried
out which takes into consideration a number of factors to determine whether, if the
investigation were to continue, there would be prejudice to the criminal proceedings which
is so significant that it is not outweighed by the public interest in ensuring: (i) the prompt
investigation of the matter; and (ii) the prompt bringing of criminal or disciplinary
proceedings against persons serving with the police where they are warranted. The relevant
factors which should be considered are specified in paragraph 9.54 the Statutory Guidance
and listed below:

 the relative severity of the allegation against the person serving with the police and
the allegation against the suspect or defendant in the criminal investigation or
proceedings;

17
https://www.ipcc.gov.uk/sites/default/files/Documents/statutoryguidance/2015_statutory_guidance_english.pdf

25
  the relative strength of the evidence in support of each allegation;

 whether delay would lead to the frustration of any potential criminal or

disciplinary proceedings against a person serving with the police;

 in particular, whether suspending the investigation would risk the expiration of the
six-month statutory time limit for the bringing of a prosecution of a summary-only
offence before the conclusion of any investigation;

 whether delay would otherwise lead to injustice to the complainant, interested

person or to the subject of the complaint; and

 the view of the CPS about whether continuing with the investigation or other
procedure would prejudice any criminal investigation or proceedings, and if so,
whether there are any steps short of suspension which can be taken to mitigate the
risk of prejudice.

73. The Statutory Guidance continues with a specific example of when the public interest would
require the continuation of the investigation even though the issues raised are closely linked.
The scenario mirrors the circumstances which surround my case in respect of the alleged
offence committed by the police was more serious than the offence I was charged with. The
Statutory Guidance states as follows at paragraph 9.55:

“There will be many cases where the necessary balancing exercise comes down in
favour of continuing with the investigation or other procedure even though the issues
raised by the criminal investigation or proceedings and by the complaint are closely
linked. That might be so, for example, where it is alleged that the police officer has
committed a more serious offence than that with which the defendant to the related
criminal proceedings is charged (because it might then be in the public interest to
prioritise the investigation and prosecution of the more serious offence despite the risk
of prejudice to the ongoing prosecution of the lesser offence).

74. The Statutory Guidance states at paragraph 9.56 that the views of the CPS should always be
sought and considered before exercising the power to suspend. The Statutory Guidance’s
final provision regarding the suspending of a conduct complaint deals with how
complainants must be notified, which includes informing them of their rights where the
suspension is objected to. Paragraph 9.60 of the Statutory Guidance is as follows:

“In any instance where an investigation or other procedure is suspended, the

complainant must be notified in writing and be provided with a rationale for the
decision. Where a complainant objects to the suspension, he or she should also be

26
 informed of their right to ask the [IOPC] to consider whether or not to direct that the
investigation or other procedure continue.”

75. Humberside police clearly proceeded to suspend the investigation in circumstances which
were not in accordance with the Statutory Guidance. The 1 December 2015 letter dealing
with the matter did not inform me that that if I objected to the suspension that I was entitled
to ask the IOPC to intervene. The rationale provided for the decision was that the matter
appeared to be closely associated with proceedings that may be taken against me and it was
the practice in such circumstances to suspend investigation of the complaint until after the
disposal of those proceedings or a decision is made to take no further action. Humberside
police was required to consider the relative severity of the allegation against the police and
the offence I was charged with (see above para 72). That was evidently not a factor taken
into account which can be said also of other criteria that would have decided if the
complaint needed to continue.

76. The force stated it was practice to suspend investigation where the complaint is closely
associated to the issue of the criminal matter, implying that the ‘balancing exercise’ which
the Statutory Guidance requires undertaking is not carried out. However, the degree to
which the Statutory Guidance is ignored could arguably extend to the point that
investigations are routinely suspended where the power to suspend does not arise because
no specific prejudice has been identified, and even if there is, it is insufficiently significant.
In that case, the ‘balancing exercise’ would not even enter into the equation, it would simply
be inappropriate to suspend the investigation.

77. Though Humberside police did no elaborate further in its 1 December 2015 letter about its
policy to suspend investigation of the complaint etc., it is published on the force’s website
under a page dealing with complaints under the header ‘the sub-judice rule’ as follows
(emphasis added):

“if the complainant has been arrested for a criminal offence and the investigation is
ongoing or has been charged with a criminal offence and the allegation made within
the complaint is closely associated to the issue of the criminal matter, an investigation
of the complaint will not be carried out until after the case against the complainant is
finalised. To do so may result in the complainant having to declare his / her defence
which would become disclosable to the Crown Prosecution Service.”

27
78. Evidently Humberside police justifies its blanket policy to suspend investigations based on
the possibility existing that continuing might prejudice the complainant’s case because he
may as a consequence have to make his defence known to the CPS. Apart from improperly
applying the IOPC test to identify a specific prejudice, the general idea that disclosing the
defence would give the prosecution an advantage makes no sense because a fair trial
depends on proper disclosure. The idea also bizarrely suggests that the overriding objective
for the prosecution is to secure a conviction, whether the defendant is guilty or not.

79. The only indication that the Statutory Guidance is complied, with in any respect, is with
regard to ‘whether delay would lead to the frustration of any potential criminal or
disciplinary proceedings against a person serving with the police’ (see above para 72). The
force’s information on complaints on its website under ‘the sub-judice rule’ adds, in respect
of when an investigation would continue:

“An exception to this is where there is evidence that an officer has committed a
criminal offence during the course of the conduct alleged and to delay the
investigation would cause that offence to become statute barred.”

80. The delay dealing with the complaint had exactly the effect of causing the offence to be
statute barred. By the time I learned from the outcome of the Local Resolution that the
investigating officer had found ‘no wrong doing’ by any of the ‘parties involved in the
matter’, the time within which I had to make a claim in respect of a breach of Human Rights
had exceeded the 12 months limit. I found this out from Hudgell solicitors who I had made
enquiries with about making a claim against the police in respect of its actions. The refusal
to take responsibility which was made categorically clear by the way the complaint was
dealt with (and the outcome) prompted me to explore other avenues to remedy the wrong
doing. However, the delay in dealing with the complaint ruled out the option of claiming
against the police. Hudgell solicitors letter of 1 June 2017 explained the following:

“Generally, claims against the Police become statute barred on the sixth anniversary of
the incident. However, there are exceptions to this rule. For example, if you intend to
pursue any claim in respect of a possible breach of Human Rights then this would
become statute barred on the first anniversary of the incident....”

81. Humberside police had no justification whatsoever for suspending the investigation, but
even if it had not been suspended, the way it was handled after the investigation commenced

28
 on 29 December 2015 ensured that by the time investigations had completed any legal
proceedings regarding the breach of Human Rights that I may have intended bringing upon
the outcome, would be statute barred. There is therefore very good reason to suspect that the
500+ days it took from submitting the complaint to receiving the outcome was engineered
purposely to cause a detriment to me and involved serious misconduct which warrants
bringing criminal or disciplinary proceedings against those officers responsible.

82. It is a reasonable assumption that because there is no specific time limit for the completion
of an investigation under the governing legislation that the force exploits this to delay
complaints knowing that the IOPC would not consider this was grounds to direct
misconduct or criminal proceedings. The force evidently gets away with this but it is
important to remember that the IOPC has stated that the reason there is no provision for an
investigation to be concluded within a certain time frame is because ‘every complaint is
different and varies in complexity’. The IOPC’s approach here to not get involved conflicts
with the message sent out in the Statutory Guidance with regard to avoiding injustice to the
complainant in respect of potential delay when making a decision to suspend when the
power to do so arises.

83. It had taken 51 days from the complaint being submitted on 8 November 2015 to when the
decision was made on 29 December 2015 to forward the file to Inspector Parsons to deal
with, then a further 372 days until he opened the file on 4 January 2017. Therefore, out of
the 512 days it took the process to be completed the file had effectively only been open 89
days. The upshot is that none of the delay in completing the Local Resolution process could
have been attributed to the complexity of the matter in respect of 423 days that the
complaint had either been suspended or avoided.

84. The PSB was chased for an update on 1 February 2016 which was not responded to and so
was prompted again on the 9 February. The PSB was written to again on the 15 February to
enquire if there were any measures put in place by the force to restrict my contact as there
was still no response. The PSB replied indicating that there was unlikely to be any measures
in place to restrict my contact with the force. It was clear from the reply that the PSB has no
effective control over the process once the file has been allocated to the investigating officer
which must amount to a dereliction of duty by the person responsible for the department.

29
85. The PSB expressed that it could do no more than forward my correspondence on to
Inspector Parsons, though made excuses for his failure to respond/update, being that he was
an operational Inspector implying his workload left him no time to deal with the complaint.
The PSB being conscious that the allocation to this officer was inappropriate adds to the
evidence that the completely unacceptable delay had been deliberately engineered to cause
injustice and therefore amounted to criminal misconduct. Further admission that the choice
of officer was inappropriate was in response to an enquiry into whether the officer who had
been referred the complaint had been instructed to discontinue the investigation. The reply
of 31 October 2016 stated the following:

“Insp Parsons has not been instructed to discontinue the investigation. As a duty
inspector, Insp Parsons is responsible for managing demand and resourcing; therefore
the delay in dealing with your complaint is due to high workloads and back log and
will endeavour to deal with your complaint when the opportunity arises.”

86. This and a telephone query made around the same time plus further calls made on 23 and 24
November 2016 were further opportunities for the force to assess the situation and conclude
it totally unacceptable to allow it to continue. Despite receiving an apology for the lack of
contact in January 2017 when the file was opened, there was still no update after another
officer spoken to on 27 February 2017 assured me that he would get a message to the
Investigating officer. If as the IOPC had stated a complainant should receive an update on
the progress every 28 days once a complaint had been formally recorded, there should
roughly have been around 17 updates, however, only one contact had been made (4 January
2017).
87. A separate investigation, also dealt with by way of Local Resolution concerning the delay,
determined in its 13 March 2017 outcome that the PSB had done everything within its
power to ensure the investigation was being dealt with in a timely and professional manner.
However, that did not appear to have extended to anything more than passing on messages.
The PSB must have been aware that the work commitments of a duty inspector would cause
difficulties for a complaint to be investigated but referred the case regardless and took no
initiative to reconsider the choice of officer to deal with the matter.

88. Incorrectly opting for Local Resolution just because an avenue exists for an aggrieved
person to appeal the decision, and take 512 days to complete, may be considered legitimate
loopholes to exploit, however, it is nonetheless an abuse of the Police Reform Act 2002.

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 Though it may technically not breach the 2002 Act itself, having to engage further on
account of the routine abuse of it has caused a detriment to me and therefore concerns the
improper exercise of police powers (an offence under s.26 of the Criminal Justice and
Courts Act 2015).

89. In this context it is must be concluded that the IOPC would have proper grounds to direct
misconduct or criminal proceedings because any alleged conduct that could arguably fall
within the definition of an offence under s.26 of the 2015 Act must be referred to the IOPC
in accordance with the IOPC operational advice note (Mandatory referral criteria update,
April 2017). As of the date of this document (19 February 2018), the period over which I
have needed to engage in the 8 November 2015 complaint has been 834 days.

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