Misconduct hearing concludes

UPDATED: No case to answer for both officers - Statement from chair

1 Mar 2018

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In January 2015 the Independent Office for Police Conduct  (IOPC) completed an independent investigation into the surveillance of Janet Alder in 2000, which found evidence of a case to answer for gross misconduct for a Detective Sergeant and an acting Detective Sergeant.

The report was referred by the IOPC to the CPS who concluded there was not enough evidence to prosecute the officers.

We complied with the direction from the IOPC’s to convene a hearing for gross misconduct against the two officers.  This hearing has now concluded with a result of ‘no case to answer’ for both officers.

Detective Chief Superintendent Judi Heaton of Humberside Police said: "We know that this has been a distressing time for Ms Alder and her family.   We do understand her frustration that the exact details around the case have not been able to be established."

The full statement of reasoning by the independent Chair of the hearing can read below. A PDF version is also available for download.

 

CM 13/14
IN THE MATTER OF PROCEEDINGS BEFORE THE POLICE MISCONDUCT PANEL
OFFICER 1
OFFICER 2
Before:
L Cieciόra, Legally Qualified Chair
ACC V Jardine
Jane Bralsford
SUBMISSION OF NO CASE TO ANSWER

1. The Officers make submissions of no case to answer, which are resisted by the Appropriate Authority.
2. For the avoidance of doubt, the key submissions are recorded; absence of reference to a submission should not be taken as an absence of consideration.
Panel’s powers to determine the application
3. It is acknowledged that the Regulations do not provide any express power for an officer to make a submission of no case to answer. The Officers submit that Reg 33(5)(a)(iv) and the Panel’s general case management powers permit the making of such an application, and the Appropriate Authority does not seek to suggest otherwise.
4. The parties agree that it is for the panel, not the legally qualified chair alone, to decide.

Directions to the Panel
5. For the avoidance of doubt, the Panel has approached the decision as follows:
a. The test to be applied is that set out in R v Galbraith (1981) 73 Cr. App. R. 124.
b. The officers are entitled to make a half-time submission. It is a tool they are entitled to utilise if and when they consider appropriate; there are no inferences to be drawn from the making of such an application;
c. The Panel has not drawn any adverse inferences from the officers’ refusal to answer questions in interview.
d. Where a fact is alleged, the Panel has satisfied itself as to each officer’s role.
e. The Panel must be satisfied that there is some evidence of misconduct but does not, at this stage, have to satisfy itself as to the gravity of the breaches.

The Officers’ submissions
6. The Officers make the following points in respect of the evidence:
a. The fact of surveillance is not disputed. In fact, it only came to light as a result of the information supplied for the completion of authority 421.
b. The surveillance was conducted through a verbal authority, and therefore 364/421 are “red herrings”.
c. The surveillance unit had no ownership or involvement in Operation YARROW and the team
i. therefore had no specific information about its progress;
ii. had no interest in the outcome of any investigation;
iii. was an asset operating at the behest of the Ops team;
iv. was pulled off another job.

d. Regarding the verbal authority,
i. It must have been communicated;
ii. It is not known who received the information;
iii. It could be thought that the authority was communicated by Mr Dixon;
iv. But he may not have been the only person to communicate information to the surveillance team.
e. There is no documentary evidence setting out the terms of the verbal authority, or the information that was passed to the surveillance team.
f. The only direct evidence is that provided by the surveillance officers themselves. A number say that the surveillance was to do with surveillance of Janet Alder and her legal representative.
g. There is clear evidence that information imparted to the surveillance team must have come from the Ops team; that destroys any suggestion that the officers were acting on a “frolic of their own”.
h. There is no requirement for the surveillance team to check the validity of any authority, particularly so where there is a fast-moving incident and no written authority.
i. Whatever the terms of the verbal authority, Mr Cheeseman, Mr Dixon and Mr Stead all concede that the way the order was framed could have incorporated Janet Alder and her barrister if considered appropriate.
j. Carrying out the surveillance was significant but not so unusual that, of itself, it required anything in addition.
k. The officers are described as being men of high integrity.

7. For Officer 1, it is submitted that:
a. There is no evidence as to who sanctioned the deployment of the surveillance unit. The Panel cannot proceed on the basis that one of the officers “must have” sanctioned it; the Panel must be satisfied as to which officer was responsible.
b. The authority was verbal, and completely separate to authorities 364/2000 and 421/2000. The precise terms of the verbal surveillance authority are not known. It is therefore not possible to know whether the officers went beyond it.
c. Information provided to the surveillance team must have included evidence on subjects of surveillance. It is accepted that others were followed, but Janet Alder and her barrister were the primary subjects. How else would the surveillance team
have known them as subjects? It is clear that a briefing took place before the surveillance started, and it was a short surveillance deployed for particular purposes. The information came either from the Ops team, or other officers.
d. Regarding the alleged obligation to check the authorities,
i. there is no positive evidence confirming that an obligation to check the terms of the authority exists;
ii. there would have to be something which stands out;
iii. in a fast-moving incident, what else could they have done?
e. There are significant gaps in the evidence, some due to the lack of time, some due to the lack of documentary evidence. The Panel should not reach conclusions based on the absence of evidence.
f. Although some senior officers have given evidence, it is clear that not all have. Given the evidence that someone else could have given authority “from Chief Constable down to Inspector”, it is not possible to conclude that no appropriate person did.
g. There is evidence that Janet Alder was a potential subject as a result of her behaviour. Accordingly, how can the Panel conclude, on the balance of probabilities, that she and/or her barrister were not subjects?

8. Officer 2 urges the Panel to consider paragraph 1.7 of the Home Office Guidance, which sets out that the Standards shall be applied in (amongst other things) a reasonable manner, including whether actions or omissions were reasonable at the time of the conduct.
9. Officer 2 assessed each paragraph of the Regulation 21 Notice, and made the following points:
a. Paragraph 1. There is no dispute with the content of this paragraph.
b. Paragraph 2. Officer 2 notes that Operations Commander may be an inflated title and that, even if no point was taken in the Regulation 22 response, notice should be taken of the actual role performed by the Officers. For the avoidance of doubt, the Panel accepts that the roles were Surveillance Commander and Deputy Commander, and that there was no overlap with the operations team.
c. Paragraph 3.
i. The Officers refute the suggestion that either of them “sanctioned” the deployment of the surveillance team; this, they say, was the role of the Authorising Officer, who was not Officer 1 or 2. There is no evidence, it is submitted, that either officer had responsibility for sanctioning the deployment.
ii. In relation to the suggestion that Officer 2’s role included satisfying himself that the surveillance was lawful (etc), the Officer refers to the nature of his role in context. He refers to the unchallenged evidence of Mr Hunter and Mr Morriss that Officers 1 and 2 applied the norms of the time, namely that if they redeployed from one job to another they would have been instructed to do so, and would have expected senior officers to provide the requisite authorities. Furthermore, that to question that deployment or to seek to view the authorities would have been out of the question at that time.
d. Paragraph 4. Officer 2 denies any failure to question the purposes of the surveillance and the authorisation for the same reasons as set out for paragraph 3.
e. Paragraph 5. There is no evidence that the surveillance was unlawful.
f. Paragraphs 6 – 9. These are predicated on the basis that authorities 364 and 421 were the last word on the matter. The circumstances now suggest that these are red herrings, or that 421 was backdated to cover the surveillance they were already authorised to do (as per Mr Dixon’s evidence).
10. There is no evidence that either officer did anything other than obey an order. There is no evidence that the order was unlawful. There is no evidence that the surveillance was unlawful. We simply do not know, because the evidence is not there.
11. Limb 1 of Galbraith is not satisfied but, even if limb 1 is satisfied, then the Appropriate Authority is unable in any event to demonstrate the conduct amounts to gross misconduct.

The Appropriate Authority’s response
12. The Appropriate Authority submits that the Panel must assess whether the evidence, taken at its highest, is such that any panel, properly directed, could not find at least misconduct proven.
13. Referring to the officers’ defence that they were “only following orders”, the Appropriate Authority submits that such a defence is not valid. In a police force an officer does not follow orders without question; they must follow lawful orders. The Appropriate Authority notes that great play is made of the fact that the surveillance team was an asset. He acknowledges that this is true, but submits that this does not make those in the team robots.
14. It is self-evident that the team would have received information as to the reason the subject was of interest; this must be correct as, otherwise, the team would be useless. They have to have context in order to do an effective job.
15. The Officers played different roles in the surveillance. Officer 1 followed Janet Alder and her barrister. Officer 2 followed males into the car park. Officer 2’s actions may fall within public order concerns. Accordingly, this is not an “all or nothing” case; there is a distinction between Officers 1 and 2. The evidence at its highest for Officer 2 is that he was the Deputy Commander who went to the car park.
16. For a police officer to attempt to listen to a lawyer and client, and to record legally privileged conversations is wrong; they know that. Mr Cheeseman and Mr Dixon made it clear how unusual that would be. Of course, it is not unusual for a lawyer to be a criminal, but this was a lawyer who was effectively acting against the police force. Mr Stead gave evidence that he expected to be told if someone wanted to surveil the barrister. It is unlikely there was a direct order to surveil Janet Alder and her barrister; such an order would obviously need to be challenged.
17. Both Officers answered “no comment” in interview, despite there being opportunities to provide a comprehensive account. Neither officer can say who gave them any orders they may have received. It is odd that the junior officers know the reason for the surveillance but those who briefed them do not. Officer 1 had the note on authority 421 to prompt his memory. It says a lot about the Officers’ recollection that they are unable to provide further details. The Appropriate Authority submits that the order was so extraordinary that they
would have remembered it. Now, despite never positively asserting that they were instructed to conduct surveillance, they are relying on evidence from others to assert that this is what happened. The Panel is therefore entitled to take into account adverse inferences.
18. The Appropriate Authority’s case, at its highest, is that an order was given to carry out public order surveillance. Once the officer saw Janet Alder/her barrister, he should have realised that this was not a public order situation and stood down immediately, recognising that listening to them was not right. Paragraph 5 of the Regulation 21 Notice is broad enough to cover this premise.

The Officers’ response to the Appropriate Authority’s submissions
19. Officer 1 submits that at no stage has the Appropriate Authority suggested that there were two distinct groups in operation; this would have altered the manner in which Officer 1 presented his defence. The Panel is not entitled to draw adverse inferences from silence in interview and notes that even some of the Appropriate Authority’s witnesses gave “no comment” interviews. Adverse inferences cannot bolster a weak case and the Panel would have to be satisfied of matters now relied on which were not raised previously. Officer 1 says that it is an “all or nothing” case, because as far as Officer 1 is concerned, the Panel must still address the issues surrounding the passage of information to the surveillance team.
20. Officer 2 submits that if the Appropriate Authority’s case is that Officer 2 was in a cohort of a surveillance team that did not get carried away and did not go outside the authority, there simply cannot be a case against Officer 2. Officer 2 echoes Officer 1’s submissions in respect of adverse inferences.

The Panel’s decision
21. The Panel has assessed the Regulation 21 Notice, taking into account the case as the Appropriate Authority confirms it to be at this juncture and accepting, for the purposes of this application, that paragraph 5 of the Regulation 21 Notice is sufficiently broad to encompass the position.
22. The Panel has considered the allegations as set out in the Regulation 21 Notice at paragraphs 3, 4 and 5.
23. Paragraph 3 sets out two allegations:
a. That one of the officers sanctioned the deployment;
b. That both officers’ roles required them to satisfy themselves that the surveillance was lawful (etc).
24. The Panel notes the volume of evidence from the witnesses that the surveillance unit would not self-deploy. It follows that there must have been a direction to deploy. The Panel has heard that only an authorising officer, who must be someone of the rank of Inspector or above, can sanction, i.e. approve/authorise, the deployment of the surveillance unit. The officers, in their Regulation 16 and 22 responses, set out the same position regarding the
operation of the surveillance unit. The evidence that the surveillance unit was sanctioned to deploy comes from Mr Dixon (then Inspector). The Panel therefore considers that there is no available evidence to suggest that the surveillance commander or deputy surveillance commander sanctioned the deployment of the surveillance unit.
25. Regarding the allegation that the officers’ roles required them to satisfy themselves that the surveillance was lawful, the Panel accepts, in part, the position set out by the Appropriate Authority. It must be right, as a general principle, that officers, whatever rank, do not blindly follow orders, and then seek to rely on the same as a defence. Equally, the nature of the order must play a significant role in the assessment of whether an order is lawful.
26. However, as the Home Office Guidance clearly envisages, that general principle must be considered in the context of the circumstances as they exist at any given time.
27. In this case, the Panel has heard evidence that in 2000, pre-RIPA and HRA, the surveillance unit was an asset, and officers in the surveillance unit trusted more senior officers to ensure that they were being deployed in accordance with law and within ethical parameters. Questioning by junior ranks of the decision-making of more senior ranks simply did not occur and if someone had attempted to question the decision to deploy a surveillance team they would be putting their career at risk. The obligation on officers did not exceed the requirement to ask whether surveillance was authorised.
28. In considering whether the nature of the order was such that it should have triggered further action to satisfy the individual of the legality of the authority, the Panel has considered evidence from Mr Cheeseman and Mr Morris. Mr Cheeseman, considered surveillance of a lawyer was significant but, he suspected, not unprecedented. Mr Cheeseman had never run a surveillance unit. Mr Morris, who had, stated that conducting surveillance on lawyers may “come back to bite you”, but he had been involved in a number of operations to investigate members of the legal profession. The Panel also heard evidence that the surveillance unit did not always receive all information from the authorising officer.
29. Although the Panel accepts that the surveillance of the lawyer who was effectively acting “against” the police was unusual, in an environment where the expected action appears, from the evidence, to have been to require the officers to simply ask whether there was authority in place, there is insufficient evidence to suggest that the surveillance commander and deputy surveillance commander were under an obligation to satisfy themselves beyond that requirement.
30. Paragraph 4 alleges the failure to question the purposes of the surveillance and any authorisation. We do not know what action the officers took in respect of any information they may have received. However, the Panel considers that the reasons set out in respect of the allegations at paragraph 3 of the Regulation 21 Notice address this allegation and, for those reasons, there is insufficient evidence to suggest that the surveillance commander and deputy surveillance commander failed to question the purposes of the surveillance and authorisation.
31. Paragraph 5 alleges that the officers carried out the surveillance on 28 July 2000 without authorisation and justification.
32. As a general point, there has been a significant degree of confusion as to the particular authority that the officers acted under. We know that 364 had a public order remit, and was limited to the area outside Hull Crown Court. This was the written authority in force at the time surveillance commenced. Whilst 421 did cover the boundaries of Humberside police, it did not come into force until 1700 hours, after the surveillance commenced. Inspector Dixon gave evidence that he gave a verbal direction to someone in the surveillance unit to surveil four black males, for public order reasons. He believed that this direction was likely to have been authorised by Supt Stead, and that authority 421 was drafted with an intent to authorise the surveillance that had already commenced. He accepted that all relevant information that should have been recorded was not. Supt Stead refutes this, and claims that he had no knowledge of the surveillance, and that 421 was never intended to cover activity prior to 1700 hours on 28 July 2000. The Panel also heard that it was possible to have an urgent verbal authority, separate to that of 364 and 421; there is no supporting documentation for any such authority.
33. The Appropriate Authority accepts that the allegation in paragraph 5 applies differently to each officer and advises the Panel that it must deal with each officer separately.
34. Addressing officer 2 first, the Appropriate Authority accepts that, at its highest, there is evidence of officer 2 receiving an order to follow males, and following males into a car park; the Authority concedes that this may fall within the public order remit of the direction given by Inspector Dixon and the written authorities.
35. On these facts, taking into account all the circumstances addressed in this determination, and bearing in mind the Appropriate Authority’s position, the Panel finds that there is no evidence that the alleged misconduct has been committed.
36. Dealing with Officer 1, the evidence from all witnesses, written and live, has been clear: the surveillance unit did not self-deploy. On that basis, a verbal direction must have been given.
37. There is clearly a disconnect between the evidence given by Inspector Dixon as to the nature of the direction he gave, and the nature of the surveillance that actually took place. However, the panel is mindful that Inspector Dixon does not recall the precise information he passed to the surveillance team and has also considered the evidence of the other officers who conducted the surveillance. Some recall a specific interest in Janet Alder and her legal team, but others recall that the surveillance operation was in relation to concerns about public order outside Hull Crown Court. In particular, John White provides evidence which suggests that the instructions Inspector Dixon said he provided are not as distant from the surveillance which was actually conducted; he recalls a colleague identifying an activist as part of a group which contained Janet Alder and her legal representative.
38. The Panel makes it clear that, of course, there is absolutely no suggestion that Janet Alder or her barrister were involved in any inappropriate conduct.
39. The Appropriate Authority submits that once Officer 1 saw Janet Alder and her barrister, he should have realised that this was not a public order matter and stood down. The Panel has some sympathy with this view but, as assessed above, the circumstances in existence at the
time were such that a surveillance officer need do no more than ask whether an authority was in place. Equally, the evidence is that the direction to follow a legal representative, although significant, was not so unusual that it would result in immediate concern.
40. The Panel is therefore satisfied that there is some evidence, because Officer 1’s actions were, on the face of it, contrary to the only known direction for the surveillance team to deploy. However, given that it is inconsistent with a significant proportion of the remaining evidence, the Panel is not satisfied that any misconduct panel, properly directed, could find the allegations proven.

Comments
41. The Panel considers that the issues in this case have only really been clarified as a result of hearing evidence. It follows that, although this process has been long and undoubtedly difficult for all involved, it was appropriate that the matter be brought before a panel.
1 March 2018