Two blog entries on two separate days about how HMCTS deals with services users money.
Tomorrow is the more complex blog entry which deals with some of the underhand ways civil courts like to part you from your cash. Stay tuned!
Today is a simpler tale of how awkward they are when you try to get it back.
An artists impression of the inside of the Fees Office at The Royal Courts of Justice.
In April this year a fee was paid to Queen’s Bench Division at The Royal Courts of Justice.
Due to the pandemic QBD was largely out of action for some time, or at least the office to deal with the application was.
By July it was clear that the grounds and reasons for making the application had passed. The time which had gone without any staff present to man the appropriate office at QBD rendered the application pointless.
So the fees were requested to be returned.
“No problem!”, say QBD.
And the appropriate notification was supposed to have been sent to Fees Office. Lead time on return was reckoned to be six weeks maximum.
Four months later I’m still waiting.
Not that the fee paid was large or exorbitant. Which makes the continued retention of it even more baffling.
But what really boils my blood is that of several emails sent to both QBD and Fees Office at RCJ can you guess how many have received a response?
Go on! Have a wild guess!
That’s right. None. Over a period of some four months now Fees Office & QBD has failed totally to respond to several emails chasing this matter.
This is of course very HMCTS.
Nor have emails to The Court Manager at QBD about the lack of response received a reply. This is even more HMCTS!
Just today an email response to a separate matter has been issued by HMCTS. That took a blindingly quick two months without any explanation of why so much time had elapsed.
In separate proceedings last week the DJ complained that the case file was in very poor condition. A prior hearing in the same matter had to be abandoned on the basis that the file had been lost.
All of the above and the general woeful experiences to be had with HMCTS suggest the organisation – visibly tottering for some time – is now actually on the verge of collapsing or has actually done so. Staff largely unable to cope pre-COVID-19 appear now to be hopelessly overwhelmed by the day to day administration of cases.
Customer Relations at HMCTS dealing with another complaint with customary sensitivity and respect.
Brief post for today. Well a brief post by the standards of this blog!
In yesterday’s blog post one of the themes touched upon was how The Ministry of Justice had sent data in error to a third party. This was a serious breach of the data subject’s rights and potentially quite dangerous to the data subject as MoJ shared the subject’s name, address, date of birth and financial details.
The post discussed the attempts The Ministry of Justice made to get back at the accidental recipient of this data which included a false complaint to police to ensure he was arrested, although fully aware police would not be able to bring charges as no offence had taken place.
Elizabeth Denham, UK Information Commissioner
The Information Commissioner’s Office (ICO) is a quasi-Governmental organisation reliant on public funding. Their stated aim is to enforce data access rights of people in the UK and also to adjudicate on data protection issues: in other words to monitor that your personal data held by companies and Government organisations is kept safe.
So we can naturally expect ICO to fully comply with data protection legislation and be extra specially careful with their own handling of other people’s data.
Can’t we?
In a delicious piece of timing just after I’d written yesterday’s blog post about The Ministry of Justice emailing data to the wrong person ICO go and do the same by sending a letter in error to me which was intended for a third party, just like the error MoJ made!
I have of course deleted the email address of the intended recipient of this letter.
It seems that Dacorum Borough Council also suffers from the problem of email incontinence as they appear to have sent the intended recipient of the ICO letter some information despite claiming an apparent exemption over the data sent!
The ICO letter states:
I am aware that the council inadvertently provided you with the requested information.
Significantly the letter also states the grounds for the council attempting to withhold this data (but clearly not managing to) were under section 31 – that is a claimed exemption from disclosure as the data is related to law enforcement.
One might hope the ICO takes appropriate action against itself for this data breach.
In all honesty I wouldn’t hold my breath.
ICO’s present logo. Strange use of lower case letters and an inappropriate full stop.
Like many of the UK’s regulatory bodies such as The Parliamentary and Health Service Ombudsman or The Local Government Ombudsman the ICO has selective blindness in relation to even large scale and ongoing breaches of GDPR and The Data Protection Act.
Ultimately the best most complainants can hope for is a letter from the ICO informing them that their complaint has been upheld and that ICO will keep a record of the data protection concerns logged regarding the data controller complained of. This does not of course produce the data that has been requested! Occasionally ICO will assist by instructing the data controller to supply data if it is being clearly withheld. However if the data controller is sufficiently obstreperous there exists enough “trapdoors” in the relevant legislation that a (often misapplied) exemption will be used to avoid supply of the data.
The efforts organisations used to evade production of data include the mishandling of applications such as considering a subject access request for personal data as if it were a Data Protection Act request and so rejecting it without giving sufficient grounds to the requester. A further trick is to label everything as the personal data of a third party and thus exempt from disclosure: on this basis large scale parts of any data disclosed can be redacted (meaning blanked out).
In these circumstances ICO becomes like a turtle placed on its back: it spins around to no real effect.
Let’s look at the wider picture. A key thing to recall about most of the non-departmental public bodies supposed to supervise how the law or organisations work in Britain is that they rarely do. These supervisory bodies often exist instead to confirm the decisions made by the lower organisation or as a way to diffuse complaints safely and without litigation. Having said this ICO is better than most and does occasionally pursue misconducting organisations through the courts. But due to the pressure of time and resources they also habitually pursue only those organisations who have committed a blatant breach of the law which has been made public, or who would be less likely to defend themselves in court and thus drive up ICO’s expenses. The majority of the fines issued in successful judgments are not paid.
One example of this willingness to turn a blind eye on the part of ICO: a 2017 significant data breach by the NHS involving some 50,000 patients medical records – the largest loss of data in NHS history – was not prosecuted by ICO. This is a matter I will comment on in detail in a blog another day.
The West Yorkshire Police and Crime Commissioner is Mark Burns-Williamson, a largely gaff-prone failed politician. Heaven knows there’s sufficient data out there in the public domain to show that by any stretch of the imagination the man is unsuited to any role requiring public trust.
My favourite one details how he sent an inadvisable letter in a “love triangle” which would ordinarily have rendered him open to criminal prosecution. This was however covered up by West Yorkshire Police’s (then) DCI Simon Bottomley leading to the eternal gratitude of Burns-Williamson to the force he is supposed to scrutinise.
It also appears his office is prepared to manipulate and ignore facts to protect the very organisation it should be holding to scrutiny.
This blog entry tells the story of one such incident.
Burns-Williamson demonstrates the degree to which he hold the local force to scrutiny.
In May 2020 The Ministry of Justice’s Data Access Office sent data to a person (who we will call the recipient) in error.
This data was information on a third party who lived in the London area. This amounted to a serious data breach as the disclosure included the subjects name, address, date of birth and bank account details etc. as well as other disclosures regarding a series Proceeds of Crime Act proceedings against the data subject.
The recipient of the data informed The Information Commissioner’s Office and The Ministry of Justice as well as the data subject whose information had been disclosed. He also posted regarding this on Twitter but did not reveal any confidential information in so doing.
Data Access at MoJ requested the recipient remove the mocking tweet. The recipient of the data refused citing his freedom of expression under The Human Rights Act and that no offence in civil or criminal law had been committed by the tweet.
Three days later the recipient of the data was arrested at his home by West Yorkshire Police on the basis that he had breached The Data Protection Act. The allegation being that he had shared the confidential data sent to him in error on Twitter.
This was palpably untrue as an examination of the tweet would have confirmed. However police did not examine the tweet for themselves but took it “on trust” from MoJ that a supposed offence had taken place. Of course it hadn’t but MoJ were burning with indignation that a serious data security error had been made public and to their official regulator on data matters the ICO.
Police were aware that no offence had occurred.
The bar for arrest for any offence is set very high as recent cases such as Rachid v. The Chief Constable of West Yorkshire Police (2020) show. Instead police took it on trust from The Ministry of Justice that an offence had occurred in a situation in which the Security Manager for MoJ’s correspondence (seen by this blogger) reveals his desire to give the recipient “a nasty shock”.
The recipient’s home was entered by police on his arrest. In the middle of the Spring 2020 pandemic a vulnerable family member who was shielding was subject to interaction with police who did not wear PPE or take any form of precautions regarding introducing COVID-19 infection into the home. Electronic devices were removed and the home was ransacked in the search. The officer leading this was PC Alan Jackson. Police actions amount to trespass to property (since there were no reasonable grounds for arrest) alongside trespass to goods and wrongful arrest.
The home of the recipient of data was raided by police without PPE in the middle of the spring pandemic.
Predictably no charges were brought. Emails seen between the Officer in Charge (OIC) and The Ministry of Justice reveal MoJ immediately loose interest when the recipient was arrested which fits in with the prior email claiming MoJ wanted to give him a nasty shock. No further action resulted to the recipient from either Police or MoJ.
A complaint was duly made by the recipient to West Yorkshire Police Professional Standards Department (PSD). Their internal investigation under The Police Reform Act 2002 confirmed – but only internally to the police – that the arrest was wrongful on the basis that WYP had not seen or been provided by MoJ with any indication that a criminal offence had taken place. Other aspects of the complaint made were ignored by PSD and not investigated.
An organisation such as West Yorkshire Police which has an international reputation for both corruption and incompetence needs to be able to head off complaints and minimise them early on. The investigation concluded in a document called an Assessment and Progress Log that there had indeed been no reasonable grounds for arrest, therefore logically the arrest was unlawful. This document was an internal document not for public or complainant’s consumption.
Police of course cannot admit that they have erred to the complainant. It opens the door for civil action for wrongful arrest and payment of compensation. It also amount to loss of professional reputation.
Thus the results of the PSD investigation which were presented to the complainant in August 2020 were totally at odds with the actual true findings of the investigation. The official line was that nothing untoward had occurred and that the arrest was legitimate: the unseen internal report stated quite the opposite. A copy of this report has since been obtained from WYP and examined.
If you find that the above shocks you then I would respectfully point out you may have little experience of the police complaints process and the extent to which it seeks to hide the conduct of misconducting and underperforming officers.
The complainant found some 21 issues with the PSD investigation response which were either suboptimal or evaded examination of the facts. Of course if you’re prepared to commit mendacity on such a scale as a police complaints office then it’s best to keep any communication simple. The response provided by PSD’s Vicky Silver was clearly exceptionally evasive and the errors in it were manifest.
Police Professional Standards Departments go to any length to dismiss valid complaints.
The complaint was progressed as an appeal to The Office of The Police and Crime Commissioner for West Yorkshire, this being a body with supposed oversight of the local force. Karen Gray at PCC was tasked with the examination of the appeal.
It is a basic element of any investigation that the investigator should have access to all of the data available to be able to reach a reasoned conclusion. This is common sense. In the course of the PCC’s investigation they either failed to obtain copies of documents such as the PSD Assessment and Progress Log or else were provided with a copy of the relevant data but chose to ignore it in favour of a rubber-stamped approval of the earlier PSD investigation.
Thus the office of West Yorkshire Police and Crime Commissioner have shown themselves to be either as throughly dishonest or professionally incompetent as the police force they are supposed to supervise. Further they are prepared to support the local force in their dishonesty.
A further complaint was made regarding the failure of the PCC to obtain all relevant data meaning that the Karen Gray investigation was fundamentally flawed. This was responded to more recently by PCC’s Jane Owen who has stated that Karen Gray could not have been aware of the Assessment and Progress Log on the basis that it was produced after the conclusion of the original PCC review.
However the document in question from PSD is dated 5.6.20.
Therefore it was produced BEFORE the complaint was referred to PCC by around two months. The response that it was not available in the original PSD investigation is therefore an outright lie.
It is of course inconceivable that an investigation properly conducted would not have requested a copy of, assessed and examined the PSD Assessment and Progress Log which was in existence by this point and therefore PSD’s position that Karen Gray had access to all of the required documentation to enable correct conclusions is not only incorrect but also deliberately misleading.
The essence of the complaint to PSD regarding wrongful arrest etc. was proven – as that office was well aware – by 5.6.20.
All subsequent efforts of PSD and the office of the PCC for West Yorkshire have sought to bury the facts under an increasing mound of guff and nonsense.
PSD chose to issue a response completely opposite to the facts they had themselves established and The Office of The Police and Crime Commissioner has assisted them in this cover-up and continues to do so.
In a desperate final attempt to avoid further scrutiny Jane Owen writes:
I have concluded that you have used the Office of the Police and Crime Commissioner’s complaints process to try and change the outcome of your complaint… and the subsequent review undertaken by this office but – in line with the statutory guidance that has been issued that sets out how reviews have to be handled – you do not have a further right of review
Is it any wonder that both West Yorkshire Police and The Office of the Police and Crime Commissioner have such a poor reputation both locally and nationally?
Certainly both are prepared to bend the truth into impossible angles to avoid any admission of error or loss of professional reputation. Perversely this ends up in a situation as described above in which loss of face and reputation end up occurring both from the original issue and the labyrinthine efforts made to conceal it.
Recorder Ben Nolan QC, a part-time, fee-paid judge on the North East Circuit posted an inadvisable tweet in the late evening of 18th June, 2020:
The relevant Twitter account has now been deleted.
Like the account of HHJ Sarah Greenan, a Family Court judge sitting at Leeds and who has been subject of a prior blog post regarding judicial misuse of Twitter.
Ben Nolan QC is assumed to have sufficient seniority as a judge to be aware of the judicial conduct rules and how these relate to the expression of opinions on social media and elsewhere.
However let’s count the issues with the tweet above, shall we?
Inappropriate uses of expletives
Political opinions expressed regarding the Government
Poor diction – an issue which has been said to appear in Ben Nolan’s judgments
“fetid Primark store” expresses social prejudice against the people you’d likely find in Primark if not the store itself.
A complaint was made to the reliably ineffective Judicial Conduct and Investigations Office which supposedly enforces judicial conduct guidelines. The complaint was made in the terms mentioned above. JCIO can usually be relied upon to evade proper action on complaints about judges via a series of “trapdoors” built into the regulations which allow such cuffing off of legitimate complaints.
However – again unusually for JCIO – the issue made it as far as Nominated Judge (NI) stage. In this matter the NI being The Right Honourable Lady Justice Carr. In a complaint outcome letter dated 21st August, 2020 the JCIO stated that the Nominated Judge (NJ) concluded that:
“I do not consider that the posting of the tweet amounted to judicial misconduct. The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge. Nor did the contents of the tweet identify in any way that the author was a judge. In short, the tweet contained a private expression of opinion, albeit in offensive language, on the part of the Judge in circumstances that did not implicate him as a judicial office holder. In these circumstances, it did not risk bringing the judiciary into disrepute”
The NJ also considered that:
“the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”.
You might of course wonder about the common sense of a judge who bases his opinions on things he has seen on television or read in a newspaper!
Recorder Ben Nolan QC
The Nominated Judge went on to say:
“Accordingly, the complaint has been dismissed under Rule 41 (b) of the Judicial Conduct (Judicial and other office holders) Rules 2014.”
Regardless of the NI’s findings the rules regarding judicial conduct apply if the judge is identified / self-identified as such or not. Otherwise there is little point having the rules! As such the findings of Lady Justice Carr are at best unsustainable.
The findings of the Nominated Judge have been appealed on these grounds:
The outcome letter states:
The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge.
However the March 2020 Guide to Judicial Conduct states:
Judges should be aware; however, that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary whether or not a judge’s comments would lead to recusal from a particular case. This risk arises in part because the judge will not have control over the terms of the debate or the interpretation given to his or her comments.
The risk of expressing views that will give rise to issues of bias or pre-judgment in future cases before the judge is a particular factor to be considered. This risk will seldom arise from what a judge has said in other cases, but will arise if a judge has taken part publicly in a political or controversial discussion.For these reasons, judges must always be circumspect before accepting any invitation, or taking any step, to engage in public debate. Consultation with their relevant leadership before doing so will almost always be desirable.Where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including a set of chambers or firm of solicitors), group or cause or to a lack of even handedness. Care should also be taken therefore, about the place at which and the occasion on which a judge speaks. Participation in public protests and demonstrations may well involve substantial risks of this kind and, further, be inconsistent with the dignity of judicial office.
This is stated in the context of post on social media or to newspapers etc.
There is no requirement in the Conduct Regulations that a judge is able to state anything he or she wishes provided he is not identified as a judge. Which of course makes a nonsense of the Nominated Judge’s application of the rules. In fact it rather shows that the NI has misapplied the rules to avoid making a judgment against Recorder Ben Nolan QC.
In fact the rules apply to judiciary regardless of if they are commenting from a personal perspective, or as a judicial office holder. Different rules of course apply to such as The Secret Barrister who is believed to be a member of counsel but is not identified directly as such.
There is no mention made in the Conduct regulations that the judge is able to publicise his own views regardless of if he mentions his judicial office or not. The rules apply equally to someone identifying themselves as a judge or not.
The response of The Rt. Hon. Lady Justice Carr hinges on the basis that the judge was not identified on his Twitter account as a judge. This is the basis for her dismissal of the complaint. This is not relevant to the complaint and in this matter has been seized upon as grounds to dismiss the complaint erroneously and contrary to the relevant rules.
One might wonder about the reliability of the investigation given the deeply odd findings made.
Anyone working on the North East Circuit (presumably the majority of Ben Nolan’s Twitter followers) are able to identify the Twitter account holder as a judge and the majority of the persons following the account will also have been aware that he was a fee paid judge from either media or professional connections. That the account holder was a member of the judiciary is something clear and obvious from the account itself.
Recorder Ben Nolan QC described as “a heavyweight in criminal practice”.
The basis on which the complaint has been dismissed is therefore spurious and erroneous.
In respect of the comments regarding Primark clothing stores the findings of the Nominated Judge stretched credulity even further. For good or ill that store seems to be one ripe for mockery as a place where people without much money tend to shop. The NI claimed:
“the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”.
This is problematic in a number of areas. Firstly why would Ben Nolan QC comment on something that he has picked up from second-hand experience? Is also his comment not reflective of social prejudice on the part of the source material in newspapers papers or on television in which he has seen such comments? Regardless of if a prejudice has been obtained from TV or newspapers the expressing of the same ideation by a person – particularly a person intelligent enough to recognise them as being prejudice – is effectively them expressing the same prejudice.
I would say that the tweet regarding Primark does express social prejudice on the part of a judge and that this is an exceptionally concerning matter.
The complaint outcome has been appealed. The outcome of the appeal is awaited.
It has been intimated in a separate civil case that Ben Nolan will shortly no longer be undertaking judicial work.
Judge Sarah Greenan (or HHJ Sarah Greenan) sits as a judge in the Family Court at Leeds Combined Court and also as a Crown Court Judge in Manchester. Her old chambers are Zenith in Leeds.
For most of her time sat on the bench she appears both bored and irritated by the mechanics of the job she has to do.
Specific rules exist in relation to judges and their ability to express an opinion in a public forum as well as their use of social media. These are enshrined in the Judicial Conduct Rules.
In February 2019 Judge Greenan posted a tweet to her since deleted Twitter account @Sarah_Zenith which expressed satisfaction that a High Court Judge has upheld an appeal in relation to a judgement she made and also that the Court of Appeal upheld her in a different case.
You may of course be wondering at this point why this judge has so many of her cases sent to appeal. This isn’t for me to comment but doubtless you can draw your own conclusions. Her pastoral supervisor is Judge Mark Gosnell, the senior civil judge for Leeds and Bradford, who also sits at Leeds.
However the sending of such a tweet amounted to a breach of regulations governing judicial conduct.
In cases such as this (or for example if a judge is abusive or aggressive in a hearing) there is a body to which complaints can be made. This is the reliably ineffective Judicial Conduct and Investigations Office based at The Royal Courts of Justice in London. Despite its name this is an office which actively seeks to avoid any examination into judicial misconduct and will seek to disapply – that is to say reject – complaints for a number of spurious reasons. Britain’s public life is beset with watchdogs which have no bite: it enables a “business as usual” approach to the corruption and incompetence which characterise public life in the UK.
But to everyone’s surprise this matter was taken up by JCIO. Which was one of a handful of complaints they did choose to investigate in 2019 and not “cuff off” as is standard procedure. Perhaps because this is a relatively low-level offence for which the evidence of misconduct was clear and unarguable. Or perhaps JCIO had a quota of complaints to process in 2019 to make it look as if the office was actually doing their job and this was seen as a trouble-free investigation. The matter was examined by the reliably obstreperous Isabelle Odowa at JCIO.
In short not even JCIO could not find a way to dismiss the complaint!
The basis of the complaint was that a lack of impartiality was shown in the opinions expressed, that personal opinions were shown and that the relevant codes of conduct for judges making public comments were breached.
As per standard procedure the complaint was referred to a Nominated Judge and then onwards to The Lord Chief Justice and Lord Chancellor. Each made a finding against HHJ Sarah Greenan with the ultimate conclusion being that the complaint was upheld.
The sanction imposed was informal advice in accordance with Para. 15 (2) & (3) of the Judicial Discipline (Prescribed Procedures) Regulations 2014.
This “cosy chat” approach of providing informal advice doesn’t seem like much of a sanction. And it isn’t. Because as this and several other cases referred to JCIO and upheld by The Lord Chancellor show “light touch” regulation is very much favoured particularly when it comes to misconduct from judges.
However it can be noted that judges as far south as Central London County Court were aware of and discussing this case after The Lord Chancellor’s decision and as such it may have sharpened up the behaviour of some of the judiciary on social media. Or not in the case of such as HHJ Recorder Ben Nolan QC… whose case I shall go into in a separate blog post one day.
This whole matter has made it clear to Judicial Office however that HHJ Greenan isn’t someone who can be relied upon not to make inadvisable comments in public forums. The judiciary tends not to appreciate members who are too verbose in this was & her actions may cost her a promotion or a minor title on retirement somewhere down the line.
Severe concerns exist regarding the safety of those being compelled to attend HMCTS civil courts
The official line from HMCTS is clear. That courts in the UK are COVID-19 secure.
The facts tell a different story altogether.
Outbreaks at half a dozen courts in the North East and North West circuits such as Leeds and Liverpool in the last few weeks show that HMCTS’ position is at best ill-informed and hopelessly optimistic. There have been further instances of the virus spreading at other courts across the UK. The PCS union has expressed severe concerns to its members regarding the safety of their workplaces, as has The Bar Council.
PCS members are encouraged to walk out of an unsafe working environment. Given the level of workplace bullying known to go on at civil courts such as York County Court it’s highly unlikely any member of court staff would do this.
Civil court users are not so lucky.
I have a hearing in case at Doncaster next week. The Defendant in the claim has already expressed surprise that the hearing is still set to go ahead despite a second national lockdown.
I have also expressed my own surprise to court staff who simply directed me to a webpage with the usual platitudes and informed that the hearing was still set for next week. The attitude towards safety concerns raised was dismissive and lethargic. This is simply not good enough in a pandemic.
None of the valid concerns I have expressed in communication with the court have received a response.
The simple fact is that a public building cannot be made COVID-19 secure any more than HMCTS can claim to have ensured a building is totally free of dust, oxygen or carbon atoms. Thus everyone attending a hearing at any court will be exposed to a potential risk of a severe illness, as will any of their family members when the attendee returns home.
If HMCTS were an organisation which is able to get the basics of running the civil system right then there would be more confidence in the claim that courts are COVID-19 secure. But the hopelessly inept, slapdash approach that characterises HMCTS pre-pandemic does not inspire confidence.
When people are being compelled to attend civil hearings in circumstances where there have been severe outbreaks in court buildings and staff appear dismissive of safety concerns one has to consider what the priorities of HMCTS are. Public health isn’t one of them.
Legal Babble 