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

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPELLANTS GROUNDS OF APPEAL

Introduction

1. This is an appeal under section 57 of the Freedom of Information Act 2000 against a
Decision Notice FS50636604 issued by the Commissioner on 6 March 2017. These
grounds of appeal are served together with the appellants 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. A summary is
provided in the Commissioners Decision Notice (the DN) under the complainants
view, 18-22.
Grounds of Appeal

3. Humberside Police has been successful in persuading the Commissioner that the
Appellants Freedom of Information requests and related correspondence have been
submitted to imposed a burden on the police and to cause them disproportionate and
unjustified disruption, irritation and distress.

4. The police view and Commissioner's analysis (23-28 and 29-35) respectively of
the DN contains evidence that the Commissioner has been misled by the manipulations
of Humberside police's representations.

Volume of correspondence connected to council tax matter

5. Mention is made to 90 pieces of correspondence received by the police all directly

connected to the Appellants council tax matter (28, DN). Presumably, the
Commissioner has not looked past this figure and allowed herself to be prejudiced by
the presentation of a significant, albeit arbitrary overall total, which completely lacks
any context.

6. A number of reasons might explain a continued need to pursue matters which is contrary
to how the police portray the intended purpose, i.e., as a means to burden the authority.
Having matters improperly dealt with by the police would be one reason completely out
of the Appellants hands for why correspondence might be increased, compared with an
amount necessary if initially they had been properly addressed.

7. A request by the police to be provided all evidence and intelligence to support an

investigation would also contribute significantly to the overall quoted items of
correspondence for which the Appellant could hardly be held responsible. The
Commissioner would clearly have been misled by the police if in the 90 items quoted
was included the requested evidence etc., broken-down into individual components.

8. Being given no details limits any representations made by the Appellant to be based on a
combination of assumptions and general observations. If the alleged volume of
correspondence has in fact been sent to the force the Commissioner cant simply accept
that it has been entirely down to the Appellant. It has been overlooked how much a

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 burden has been put on the Appellant in being caused the injustice of having to pursue
countless additional procedures brought about because correspondence had been
improperly dealt with by the force.

9. The forces less than open approach has to be a contributing factor for the mounting
number of correspondence. It has become abundantly clear that no amount of evidence
would satisfy the force that it would be appropriate to investigate the criminal approach
taken by the council in its collection of Council Tax. If at the outset the force had been
completely honest about the restrictions that where preventing it from investigating the
crime1 then it would perhaps not have received the volume of correspondence it alleges
has caused an unreasonable burden.

10. The blanket refusal to take the appropriate action when provided with evidence will
inevitably cause the need for subsequent correspondence to be sent because of how the
relevant legislation governing these matters functions. The police reform Act obliges the
police to inform someone unhappy with the service of their right to raise their concern
by complaint/appeal. Similarly if an officer refuses to record a reported crime the force
is duty bound to inform you of your rights to appeal that decision. The law governing
how the police deal with these matters therefore invites further correspondence which
must be dealt with by the police but more unfairly burdens the person who has to jump
through endless hoops in return for voluntarily giving their time to assist the police. The
burden is so obviously on the person unhappy with the service because of the endless
invitations by the force to challenge their intransigent decisions.

11. The 90 pieces of correspondence presumably would have resulted from a combination
of the suggested circumstances set out in xx-xx above and therefore an unfair
representation of the overall figure.

Burden proportional to volume of correspondence

12. There is no evidence to support that the alleged volume of correspondence is

proportionate to the burden put on the force. Police responses consist without fail of the
bare minimum needed to fob off the Appellants concerns; the only hint of any impact

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It is seriously suspected that the force has its hands tied, to the point where an investigation into local
government is a no go area, i.e., the force operates on a discriminatory basis.

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 on police resources is when complaint and/or appeal processes are engaged. Comparing
the impact on police resources of properly investigating a crime, with handling a
complaint, the latter is probably fractional and likely accounts for the exploitation of the
complaints system. The irony, and surely an unintended consequence of Police Reform
legislation 2 , is that the force is encouraged to avoid investigatory work by routing
challenges of its refusals through the forces statutory complaint procedure as a cheaper
option.

Why the polices involvement has no credibility

13. An insight into the relationship between Humberside police and the Council is given in
correspondence from the forces Professional Standards Branch. The matter concerned
the forces refusal to investigate alleged fraud by the Councils bailiff contractor.
Evidence had been supplied of sums fraudulently imposed on the Councils residents of
325,000 over a set period. Data from a process taking over a year and a half battling
with the Council to obtain it backed up the claim. The figure only partly represented
what would be discovered if investigated and a fraction of the amount if all councils
were accounted for. The outcome letter dated 1 May 2014 contained the following
(emphasis added):

DS Wood carried out extensive research into your submission. He also met with
members of the Council Tax Department at the North East Lincolnshire Council
and has spoken with their counterparts at the Hull City Council.

The council have made no report of criminal wrongdoing by the bailiffs.

Therefore my decision still stands; Humberside Police will not be pursuing an

investigation into this matter for the reasons outlined in DS Woodss email dated
9th November 2013.

14. The force had bizarrely admitted that the Council, against who the allegations were
made, had been relied upon to rest assure them that there had been no criminal
wrongdoing by the bailiffs. The decision not to investigate on this basis therefore
suggested complicity; if not then incredible naivety to have believed council officers
(under enormous pressure to lie) to say anything other than what would best protect the
Councils reputation and legal position.

2
The Police Reform Act 2002 and the Police Reform and Social Responsibility Act 2011

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Apparent misunderstanding of the issues

15. Whether a ploy to skirt issues or genuine inability to identify the allegations, either can
cause dissatisfaction with the force leading inevitably to further enquiries. A sample of
correspondence [Exhibit 1] relating to previous allegations demonstrates how the point
was missed to the extent that the force effectively considered none of the presented
issues. The letter ultimately dismissing the allegations contained an entirely irrelevant
statement that had been tenuously linked to the matter in general.

16. The issues surrounded N.E. Lincs Council (NELC) generating revenue through
summons costs from a significant proportion of council taxpayers by its irresponsible
use of Magistrates court applications to obtain Liability Orders to enforce alleged late
or non payment of Council Tax.

17. Concerns about magistrates failing in their legal duty were brought to the fore in
national news: see Shes at the door: Britains first 1m bailiff 3. Data had been obtained
from NELC to find out the number of Liability Orders obtained where the outstanding
balance was less than 100 with the amount itemised if any were for less than 10. The
figures obtained (covering a five year period) revealed a total 3,528 Liability Orders for
initial debt of 50 or less. On this failure to follow due process it was held in a case
between "Regina v. Brentford Justices, Ex parte Catlin" that a magistrate must go
through the judicial exercise of deciding whether a summons or warrant ought to be
issued or not. The Council had stated that accounts are only progressed to enforcement
for amounts over 50 4 , but records revealed a completely different picture.

18. It was also confirmed that in respect of a council tax liability order hearing of 2 June
2011 a summons document warning of additional costs which were no longer applicable
was sent out to 3,359 householders [Exhibit 2].

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Sunday Times 13 November 2011 Debt collection on behalf of councils is booming as people are chased for
as little as 1p.A freedom of information request to North East Lincolnshire council revealed it issued 1,387
court orders for debts of less than 25 between 2006 and 2011 including 82 for less than 10 and three for just
one penny..
4
Chief Executive letter of 7 November 2011 (NEL/118211/12) The council's collection team checks the
accuracy of all accounts before passing them to the enforcement stage. Accounts are only progressed to
enforcement for amounts over 50.

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19. The Council had informed the Magistrates court by letter that it was increasing
summons costs in sufficient amount that it would no longer be necessary to impose
additional costs upon obtaining a Liability Order. Neither the council nor Magistrates
court noticed any of the 3,359 documents containing errors which brings into question
whether any monitoring at all takes place. The decision to front load costs 5 had the
overnight effect of increasing the summons by 120%. The Council had been given free
rein by the Magistrates' court to set its own levels which when applied for at the hearing
would be granted by the bench with no questions.

20. As the final letter dated 23 April 2012 [Exhibit 1] confirms, the force misrepresented
the allegations to be questioning the legality of the bulk procedure used in the
summons process rather than the legal failings within that procedure.

Recording complaints wrongly

21. Humberside police were engaged in a matter protracting over two and a half years from
February 2013 to its eventual conclusion in September 2015. The force made a decision
in November 2013 that it would not investigate allegations on the spurious grounds that
it believe that no criminal offences had been committed and maintained its decision in
the face of comprehensive representations contending its reasons.

22. A letter sent to the Economic Crime Unit (ECU) on 24 November 2013 expressing
dissatisfaction with the outcome was taken by the force to be a complaint regarding the
forces decision not to investigate an allegation of fraud. The complaint was recorded
wrongly as 'Direction & Control' (organisational issue) whilst in fact should have been
classified as a 'Conduct Matter'. The significance being that whilst a 'Conduct Matter'
had a right of appeal, in the case of a 'Direction and Control' complaint there is no
automatic right of appeal. The outcome letter dated 4 February 2014 [Exhibit 3] sent by
the Detective Inspector in charge of the ECU as well as upholding the November
decision not to investigate also stated the following:

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NELC took the decision (2011/12 budget-setting) to front load and increase summons costs to raise a
forecasted three quarters of a million pounds additional revenue over four years. The budget-setting was open to
consultation where the views of residents, etc., were sought to establish their preferences for where savings could
be made to meet the shortfall as a result of government cuts. It was found that increasing summons costs as a
means of generating income was favoured by the majority of respondents over alternative proposals to introduce
a charge for replacement bins or garden waste collections.

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 Please be aware that as your complaint refers to an organisational issue there is
no right of appeal against the outcome of this process. This is in accordance with
Paragraph 8A Schedule 3 of the Police Reform Act 2002.

23. The relevant authority for defining direction and control complaints, as opposed to
conduct matters was a case between North Yorkshire Police Authority v IPCC (Jordan)
2010. The court ruled that a complaint could not be classed as direction and control if a
conduct issue was raised. It was held that a direction and control (decision), is
essentially concerned with matters which are of a general nature, and "a decision
which is made by a chief officer which is confined to a particular subject falls outside
the definition of direction and control."

24. After some research and engaging the Independent Police Complaints Commission
(IPCC), the IPCC agreed with the Appellants assertions that Humberside police had
wrongly classified the complaint (possibly to avoid having an appeal to deal with). It
was implied anyway at that time by the Detective Inspector dealing with the complaint,
that an appeal right was academic because the force would at no point consider the fraud
allegations for an investigation.

25. The force acknowledged the IPCCs decision to uphold the appeal in a revised letter of 1
May 2014 (almost identical outcome letter as the February one). The only material
difference the revised letter included the options available to the Appellant regarding the
right of appeal. An email of 26 June 2014 set out conditions of the Local Resolution
procedure which applied.

26. From the contents of the revised outcome the additional evidence which had been
provided had clearly not been considered which was confirmed by the reiteration of an
untrue statement that had been pointed out in the letter dated 25 February 2014 (see
below 27-32). It would be unfair if the burden element arising out of the incorrect
recording practices of the force contributed to a decision justifying applying the
vexatious exemption. The burden again has to be considered put on the Appellant who
has had more hoops to jump through for what is essentially a thankless task of
attempting to hold public bodies to account.

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Unexplained untrue statements

27. A complaint regarding a decision not to investigate an allegation of fraud, recorded 14

January 2014 (see above 21-26), was referred to the Detective Inspector in charge of
the ECU to investigate. The outcome letter dated 4 February 2014 included the
following statement:

"I have also liaised with Detective Inspector Welton, who dealt with the same
complaint you made to Humberside Police in 2009.

You may recall he visited you at your home and explained the reasons why your
allegations were not of a criminal nature."

28. This implies that the Detective Inspector had informed the resolving officer that he had
visited the Appellants home in 2009 which is completely untrue as there was no visit
then and there has never been a visit. The letter ended stating that the matter had been
recorded as an organisational issue and consequently there was no right of appeal.

29. As previously stated, it was considered that the complaint had been classified wrongly
and should have been recorded as a conduct matter. Further correspondence was
therefore sent regarding the complaint, as a conduct matter has an appeal right.

30. The letter of 25 February 2014 [Exhibit 3] addressed to the resolving officer clearly
pointed out that the claim of a visit was untrue, however, the same statement was
reiterated in a revised letter sent by the resolving officer dated 1 May 2014. No attempt
was made to explain the anomaly and despite several queries made since there has been
nothing to account for the untrue statement. The revised letter dated 1 May 2014 stated
the following (referring to an incident):

"I have also liaised with Detective Inspector Welton, who dealt with the same
complaint you made to Humberside Police in 2009. You may recall he visited you
at your home and explained the reasons why your allegations were not of a
criminal nature.
........
Whilst there are some differences between the officers explanation and your
account, I do not question your genuine belief and perception of the incident."

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31. Beside there never being a visit in 2009, it was not the same complaint. The complaint
then related to the Appellants own case, whereas the issues in 2013 to 2015 related to
thousands of cases (potentially millions) involving hundreds of thousands of pounds
(potentially millions).

32. Had there been cooperation at the various opportunities to explain then continued
pursuit of the matter would not have been necessary. It is not unreasonable for someone
who has been told that a certain police officer has visited them, when the visit has never
happened, to expect an explanation especially when the alleged purpose of the visit was
to inform the Appellant of something which was material to the forces decision not to
investigate. Contrary to vexatiousness it was the forces obstruction that caused a
disproportionate amount of injustice in terms of the amount of time the Appellant had to
spend attempting to get an answer and find out what was supposed to have been
explained on the visit.

Failure to meet requirements laid down by the IPCC

33. It would be unfair to criticise the Appellant for the additional correspondence
attributable to the forces failure to meet requirements laid down by the IPCC regarding
updates on the progress of complaints. The force must take responsibility for whatever
burden it creates for itself when a consequence of its own negligence.

34. A complaint was made about a named officer on 8 November 2015 as it was suspected
that he had incited witnesses (who had lied) to commit perjury. There is no outcome to
the investigation despite over 500 days passing since the complaints submission. This
suggests that the Professional Standards Department (PSD) is seriously failing in its
duty to the public and especially to the Appellant who has since the reported misconduct
been the victim of wrongful arrest, false imprisonment, wrongly convicted on false
evidence and now having a criminal record. The financial consequences of the fine
alone amount to more than 600, however, this pales in comparison with the time and
effort expended in the numerous avenues that have been explored to address the
miscarriage of justice.

35. An officer was referred the complaint who had made no contact up until 4 January 2017
regarding the investigation. The PSD had been contacted directly in connection with the

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 delay on a number of occasions and each time the person spoken to said theyd get the
assigned officer to update the Appellant with how the investigation was progressing.
The force appears to have inadequate supervisory provision in place; you would expect
someone with overall responsibility for the PSD must be required to monitor the
progress of investigations and call into question a case that has been allowed to remain
unaddressed over such a protracted period.

36. It is not unreasonable to assume that the delay is deliberate and the investigating officer
abusing his position to gain personal satisfaction by grossly inconveniencing and
causing injustice for the Appellant for raising concerns about one of his colleagues.
Complaints were submitted by the Appellant toward the end of December 2016 at which
point over 400 days had passed since the 8 November 2015 conduct complaint was
made.

37. Despite the appellant receiving an apology in January 2017 for the lack of contact (see
below 41) there was still no update after another officer spoken to on 27 February 2017
assured the Appellant that he would get a message to the officer who was dealing with
the conduct complaint made in November 2015.

38. The IPCC informed the Appellant in an email of 17 January 2017 that once a complaint
has been formally recorded under the Police Reform Act 2002 the complainant should
receive an update on the progress of the complaint every 28 days from the Investigating
Officer. A rough estimate suggests that around 18 updates should have been provided by
now but the Appellant has only been contacted once, i.e., when he learned that the
Investigating Officer had only opened the complaint file for the first time on 4 January
2017.

39. The complaint about the delay which had been dealt with by way of the Local
Resolution Procedure was upheld. The outcome letter dated 13 March 2017 [Exhibit 4]
expressed that the investigating officer should have been more diligent and kept the
Appellant updated. In defence of the PSD, the investigation found that it had done
everything within its power to ensure the investigation was being dealt with in a timely
and professional manner, however, the Appellant has still not been contacted on this
matter. Because of this completely unacceptable situation it would be wholly unjustified

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 if the force used the persistence of the Appellant against him in a claim to the
Commissioner that he was putting an unreasonable burden on the authority.

40. In this matter it is also worth noting an inconsistency with what Humberside police had
informed the Commissioner regarding another FOI request made by the Appellant. The
DN dated 21 December 2016 (FS50649463) states at paragraph 21 the following
(emphasis added):

"The police said there was evidence that the complainant held personal grudges
against the named officer and some other employees of the police force. He had
now made eight information requests about the named officer, concerning
allegations that he had fabricated evidence against the complainant. Investigation
had shown the allegations to be untrue."

41. The Police had evidently not investigated the named officer on account of the first
communication from the officer allocated the complaint being an email to the Appellant
dated 4 January 2017 which is around 14 months from the 8 November 2015 date when
the complaint was submitted. The email contained the following:

"Firstly I must sincerely apologise for the lack of contact by me in relation to your
complaint against [the named officer].
........
I have only opened your file for the first time tonight and I would very much like
to speak to you regarding your complaint at the earliest mutually convenient
opportunity."

42. Similarly a question arises as to the reliability of the information that Humberside police
provided the Commissioner in relation to the present appeal. Paragraph 21 of the DN
states, so far as is relevant, as follows (emphasis added):

.... He had made allegations of perjury against individuals which had been
investigated but which investigation had shown to be untrue. ..

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43. This was queried a number of times [Exhibit 5] and proof requested that the matter had
been recorded as a crime. However, the force refused to record it stating that allegations
of perjury were not investigated unless a request to do so comes from the court.

Inappropriate and abusive or aggressive language

44. The Commissioner has been persuaded, presumably from information provided by
Humberside police, that the Appellant in his communications to the force has used
inappropriate and abusive or aggressive language (see 33 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 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.

45. Humberside police 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.

46. 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.

Conclusion

47. The motive for the Humberside police applying section 14(1) has been to avoid
disclosing information (or being unable to) that would cause embarrassment to the force
regarding the various investigations that have or perhaps have not been carried out.

48. The Commissioner concludes that the Appellant continues to pursue complaints that
have long been adjudicated, but provides no evidence to support this assertion. It is
next claimed that he persists in making requests for information under FOIA which no
longer have any serious purpose and are of little or no value to the general public. This

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does not take into account Dransfield v Information Commissioner and Devon County
Council [2015] EWCA Civ 454, where it was held that: ...in defining vexatiousness
the emphasis was on an objective standard. The starting point was whether there was a
reasonable belief that the information sought would be of value to the requester, the
public or any section of the public...

3 April 2017

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