Are the Police Accountable or Above the Law?
Avon and Somerset Police refuse to adhere to the law and refer to the IOPC formal allegations of corruption, concealment of evidence, lying under oath and Human Rights abuses by its officers.
Johnson v Avon and Somerset Constabulary
Judicial review hearing Bristol Justice Centre, Bristol 22nd March 2019
The complaint against Avon and Somerset Police (A & SC) was made in February 2018 by Mr. David Johnson MD: A Consultant Orthopaedic Surgeon formerly at the Spire Private Hospital in Bristol. This followed an alleged incident in September 2015 in which his secretary claimed that she had been bitten. The incident was investigated by PC Sam Hewitt 4801 of the A & SC. Mr. Johnson has always denied the allegation but was convicted in February 2016 and has not worked since. Solicitors for Mr. Johnson repeatedly complained to the police and the CPS requesting the disclosure of the police records of the investigation and the telephone records of the complainant. Disclosure of these documents was ordered by the court but never provided by PC Hewitt. Only in April 2018 did the Senior District Prosecutor of the CPS confirm that the evidence PC Hewitt had given under oath to the trial had been false and incorrect, he had been the officer responsible for police disclosure and that the police evidence, telephone records of the complainant and records of the investigation had never been provided. Subsequently solicitors for Mr. Johnson have obtained from the hospital some of the documentation, evidence and e-mails which had passed between PC Hewitt and Mr. Rees-Jones the manager of the Spire Hospital Bristol.
Mr. Johnson’s complaint alleged that PC Hewitt 4801:
•Failed to comply with the orders for disclosure from the court
•Concealed evidence from the court including his Police Note Book, the police records and the telephone records of the complainant
•Entered into a corrupt agreement with Mr. Dan Rees-Jones the manager of the local private Spire Bristol hospital and Mr. Johnson’s employer at that hospital
•Used Mr. Rees-Jones as an undisclosed witness
•Prematurely concluded his investigation at the request of Mr. Rees-Jones
•Provided confidential information from the investigation to Mr. Rees-Jones to facilitate Mr.
Johnson’s dismissal from the hospital
•Suggested to Mr. Rees-Jones that he might distribute that confidential information more widely to damage the reputation and employment prospects of Mr. Johnson.
•Suggested to Mr. Rees-Jones that Mr. Johnson had been charged when he had not
•Provided to Mr. Rees-Jones a draft press release from the media department of the Avon and Somerset Constabulary (A & SC) describing how the police would publicise the fact that Mr. Johnson had been charged, when in fact he was not charged until several week later.
•Formulated a false and misleading MG5 police report which removed exculpatory evidence helpful to Mr. Johnson, even altering the date of the alleged incident to remove any question of the inconsistencies in the allegations and police case against Mr. Johnson. Indeed, there is no police record of PC Hewitt interviewing or speaking to the complainant before he charged Mr. Johnson.
•Gave false and misleading evidence under oath to the Crown Court and perverted the natural course of justice.
•Abused Mr. Johnson’s Human Rights to confidentiality, a fair trial and discrimination under the articles 1, 2, 4, 7 and 8 of the UNHCR code for Law Enforcement Officers and article 5 of the OHCHR Code of Conduct for Law Enforcement Officials: “cruel, inhuman or degrading treatment or punishment”.
•Mr. Johnson also alleges that the A & SC acted unfairly in refusing his solicitors repeated requests for disclosure.
•Mr. Johnson alleges that the A & SC have a problem with a systematic institutional racism within the constabulary.
The formal complaint was drafted in a five-page letter with an additional 57 pages of detailed analysis and 825 pages of referenced documents and evidence. It was lodged against the Avon and Somerset Constabulary on the 16th February 2018. The response of the A & SC should have been received within 10 days but was not received until 56 days later on the 13th April 2018. The A & SC formally recorded and categorised the allegations against PC Sam Hewitt 4801 as:
1“Corruption and malpractice”,
2“Discriminatory behaviour”,
3“Lack of fairness and impartiality”,
4“Other neglect or failure of duty”,
5“Improper access and/or disclosure of information”
The complaint suggests that once the A & SC recorded the complaint and the “allegations” in these terms, they did not refer the matter to the IOPC for investigation according to the law and the statutory guidance of the IOPC and IPPC on the criteria for “mandatory referral”. The A & SC stated that the complaint was out of time as it was more than 12 months since PC Hewitt gave his evidence in court.
Mr. Johnson seeks a Judicial Review of the way the A & SC handled his complaint and their refusal to refer it to the IOPC. The counsel for Mr. Johnson Mr. N Stanage of Doughty Street Chambers reviewed the papers of the case, the complaint and the response of the A & SC. In his application for a Judicial Review he summed up the actions of the police as “serious corruption”.
In his response of 13th of November 2018 Mr. Robert Talalay of 5 Essex Court Counsel for the A & SC stated that in respect of the recorded allegations of corruption:
•That the Claimant has used the word “corruption” does not mean that he is actually complaining of corruption (or at least that such a complaint is anything other than fanciful).
•The suggestion of an improper relationship between PC Hewitt and the Claimant’s former employer is fanciful and without any evidence to ground it.
In respect of their refusal to refer the complaint for investigation to the IOPC, the A & SC stated to the court that:
•“the police were “right to proceed as the Appropriate Authority and not to refer the matter to the IOPC”,
•“That the Claimant seeks to sum up this conduct as being “serious corruption” does not make it so”
•The police “must be entitled to consider the substance of the complaint and whether it meets the requirements for referral to the IOPC rather than being bound by the form of words used”.
•Had the matter been referred to the IOPC then “the final disposal of this complaint would have been the same”
Comment: The A & SC appears to formally claim in court that the police are above the law and do not have to abide by the statutory guidance of the IOPC. Even if the allegations made in a formal complaint are recorded by the police and meet the criteria of the IOPC for mandatory referral, the A
&SC claim that the police are not bound by the recorded allegations and the rules of the IOPC. The A
&SC claim that they can investigate the allegations themselves and dismiss them without referral to
the IOPC if they think it appropriate, or when more than 12 months has passed. The matter is due to be heard at the Bristol Justice Centre on Friday 22nd March 2019.
Attachments:
•JR Police Grounds for JR Section 2.pdf
•Police JR response.pdf
•JR Police reply to summary grounds contesting claim.pdf
Background:
•Mr. Johnson was an internationally renowned Consultant Orthopaedic Surgeon working at the Bristol Spire Private Hospital since 1992.
•His secretary alleged an assault occurred on 2nd September 2015, which she first reported to colleagues on 3rd September 2015.
•The criminal allegation against Mr. Johnson was only made some a week later on 9th September 2015. The matter was investigated by PC Sam Hewitt 4801, who prepared the
police report and the schedule of disclosure documents on 11th November 2015. PC Hewitt did not appear at the Magistrates court trial to give evidence on the 1st February 2016 due to
“holiday”.
•Mr. Johnson was dismissed from the Spire Hospital Bristol in October 2015 and was reported by the manager of the Spire Private Hospital Bristol to the GMC (General Medical Council) for having lied to the internal hospital investigation that he had not then been charged.
•The GMC dismissed the complaint as Mr. Johnson had not lied, as he had not been charged until two weeks later.
•Mr. Johnson was convicted of common assault on 11th February 2015 and has not worked as a Consultant Orthopaedic Surgeon ever since. An appeal was dismissed by HHJ Ticehurst on 23rd June 2016.
•Only In April 2018 the Senior District Crown Prosecutor of the CPS first confirmed that at the appeal PC Hewitt had lied under oath, provided false evidence and had not disclosed the full police report, his PNB (Police Note Book), and confirmed that he was the officer in charge of police disclosure.
•The Senior District Crown Prosecutor of the CPS then suggested to Mr. Johnson‘s solicitors to
“consider making a complaint to the relevant Police Professional Standards department”.
•Recent published reports on racial discrimination by the Avon and Somerset Police include:
a)Bijan Ebrahimi and the report that found him “failed” because of “discriminatory behaviour and institutional racism” within the Avon and Somerset Police, along with the related IPCC and MacPherson reports into the incident 2017
b)The jailing of PC Duffy and PCSO Passmore for misconduct related to racial prejudice in 2016
c)The recent case of racial comments posted by PC Cadden in January 2018
d)Bianca Durrant v Chief Constable of Avon and Somerset Constabulary in 2017 EWCA Civ 1275
e)The racist assault by PC Claire Boddie on the Mr Judah Adunbi in 2017
f)Bristol Muslim leader Farooq Siddique who had rape charges dropped after two years following the late police disclosure of telephone records in 2017
Police non-disclosure in similar cases
•Such non-disclosure was identified as potentially leading to a serious miscarriage of justice and has been criticised by various recent reports and investigations into police disclosure. These include the reports of the Chief Inspector Kevin McGinty in 2017, Sarah Thornton of the National Police Chiefs Council in January 2018, Lord Judge, the Chairman of the Criminal
Justice Policy of the Police Chief’s Council, Alison Saunders and Max Hill the current and previous director of the CPS, and the report of Sir Richard Henriques of December 2016 into the Metropolitan Police “Operation Midland” Investigation.
•In a later judgement in 2018 when the sexual assault case of R v Doughty collapsed due to the failure of proper disclosure by Avon and Somerset police. HHJ Ticehurst; the very same
Crown Court Judge who dismissed Mr. Johnson’s appeal in June 2016, suggested that in respect of non-disclosure by the A&SC:
“Members of the public will cease to have any confidence in the justice system”…. “They might have had some impact on the trial and it would have been wrong to continue with the trial without the defence having seen the documents.”
https://www.somersetcountygazette.co.uk/news/15914219.justice-system-is-creaking-its-collapsing-blasts-judge-as-another-trial-collapses/ https://www.thetimes.co.uk/article/taunton-rape-trial-collapses-after-police-fail-to-investigate-facebook-messages-2xpr7279m
•This seems similar to a situation in the recent report of an IOPC investigation into the Professional Standards department of the Metropolitan Police for failing to properly investigate complaints.
Detective accused of sitting on evidence – The Telegraph Scotland Yard's standards unit under investigation | The Times
Manchester police professional standards unit 'was corrupt' - BBC News
The law and the mandatory referral of certain “allegations” to the IOPC:
The law states that on receiving a complaint a Constabulary must categorise and record the “allegations” according to the criteria laid down by the IOPC. The IOPC then identifies that certain
“allegations” are ones which must be referred directly to the IOPC for investigation as “mandatory referral Criteria”.
These mandatory referral criteria include (section 8.4): https://www.policeconduct.gov.uk/sites/default/files/Documents/statutoryguidance/2015_statutor y_guidance_english.pdf
•“Serious corruption”
•“Serious misconduct”
•“Criminal offence or behaviour which is liable to lead to misconduct proceedings”
•“A relevant offence”
•“Where there is doubt about whether a complaint or recordable conduct matter must be referred, the IPCC encourages referral”.
Corruption: Reference to Table 1 of the IOPC Statutory Guidance: “Guidance on recording of complaints under
PRA 2002 Dec 17 update”: Table 1. Allegation categories for police misconduct (pg 11):
“Corruption or malpractice: Definition: This includes allegations of corruption or malpractice. Corruption is the abuse of a role or position held, for personal gain or gain for others. This ranges from serious corruption (e.g. any attempt to pervert the course of justice) to the less serious (e.g. misuse of
warrant card). This includes tampering with evidence, allegations of theft (where linked to an abuse of position, such as an allegation of theft during an authorised search of a property), and allegations of inducements if complaints are dropped. Standard: Honesty and integrity”
or “any potential criminal act such as perjury or lying under oath”, “discrimination”, “perverting the natural course of justice”, “unauthorised disclosure of confidential information” or a “Breach of Human Rights”.
“Serious misconduct is defined as any action by a serving police officer which has raised a question of a potential criminal act. The guidance identifies that where there is any doubt then the matter should be referred to the IOPC”. “Where the “allegations” in a complaint reach the “Mandatory Referral Criteria” of the
IOPC the matter must be referred to the IOPC without delay the same day.”
"Serious complaint: In addition the definition of a "serious complaint" i.e.: "a qualifying complaint made about conduct which constitutes or involves, or appears to constitute or involve, the commission of a criminal offence.” means that mandatory referral was necessary once this was categorised and recorded.
Section 4.8 of the IOPC statutory guidance:
•https://www.policeconduct.gov.uk/sites/default/files/Documents/statutoryguidance/2015_statutory _guidance_english.pdf
The IPCC Operational advice note (mandatory referral criteria update, April 2017) states:
•https://policeconduct.gov.uk/sites/default/files/Documents/statutoryguidance/Operationa_%20advic e_note_mandatory_referral_criteria_April_2017.pdf
1.4. Appropriate authorities are required by law to refer complaints and recordable conduct matters, which fall within the mandatory referral criteria, to the IPCC (IPCC Statutory Guidance, section 8).
Section 2: Additional guidance on applying the mandatory referral criteria the statutory offence of police corruption
3.1On 13 April 2015, a new statutory offence of ‘corruption or other improper exercise of police powers and privileges’ was introduced by section 26 of the Criminal Justice and Courts Act 2015.
3.2For the avoidance of doubt, any alleged conduct that could arguably fall within the definition of this offence would constitute an allegation of serious corruption and must therefore be referred to the IPCC.
The definition of “serious complaint” appears in schedule, 7 paragraph 2(6) of the Police Reform and Social Responsibility Act 2011: http://www.legislation.gov.uk/ukpga/2011/13/schedule/7/enacted
“2(6) In this paragraph “serious complaint” means a qualifying complaint made about conduct which constitutes or involves, or appears to constitute or involve, the commission of a criminal offence.”
The IOPC Statutory Guidance: Guidelines for handling allegations of discrimination states:
1.29 All allegations of criminal offences aggravated by discrimination against a protected characteristic must be referred to the IPCC.”
3.23 ... Once a conduct matter is recorded, the appropriate authority must decide whether to refer the matter to the IPCC. The grounds for mandatory referral and voluntary referral are the same as for a complaint.
3.25 If the conduct matter meets the mandatory referral criteria, it must be both recorded and referred to the IPCC. If the conduct matter does not meet the mandatory referral criteria, but meets one of the other grounds for recording, the appropriate authority should consider whether or not to refer the matter to the IPCC voluntarily.