Is PHSO Parliament’s silo for ‘toxic waste’?

Members of PHSOtheFACTS put in 32 cases of Misconduct in Public Office to the Metropolitan Police. Misconduct in Public Office is an offence which enables the public to hold individuals to account when they commit offences in their role as a public officer.  We discovered that the Crown Servants who work for PHSO have legislation which enables them to be immune from the law as ‘intended by parliament’

Key quotes from the Metropolitan Police Review.

“D.I Granville’s investigation found that Section 11 of the Parliamentary Commissioners Act 1967 effectively shields scrutiny of PHSO investigations unless they are being investigated for alleged offences of perjury or breaches of the Official Secrets Act.”

“This lack of ability to scrutinise coupled to a lack of transparency on the part of the PHSO effectively forestalls any effective investigation of PHSO activity.  To date the situation has not changed nor is this likely whilst statute law provides the protection that parliament must have intended.”

The review letter in full.

The outcome of your complaint against police.

Dear

Firstly may I apologise for the delay in getting this reply back to you in a timely fashion. DI Deefholts, the assigned investigator completed their assessment by the end of January 2018. It was then sent to me as Professional Standards Champion for SCO1 Homicide and Major Crime and I thought I had sent the attached letter to you and accompanying report in February but from your recent email to DI Deefholts I had not so apologies.

This letter is in relation to your complaint where you stated that there was a:

1. Failure on the part of the Metropolitan Police Service to record or investigate your

allegation of crime specifically of Malfeasance / Misconduct in a public office on the

part of staff within the Parliamentary & Health Service Ombudsman (PHSO).

And:

2. That officer(s) within the Police enquiry team have colluded and or conspired to

‘cover-up’ misconduct on the part of the PHSO

This investigation was taken by DI Deefholts. A report detailing the findings and conclusions of the investigation has been completed and is attached to this letter. The report findings and my decisions in relation to it, are based on the facts that were available during the investigation. In considering the content of the report I have made my decisions based on the balance of probabilities, which means an individual complained of will have a case to answer if the alleged behaviour/conduct was more likely to have occurred than not.

As Professional Standards Champion I have been delegated by the Commissioner of the Metropolitan Police to consider the findings and conclusions of complaint investigations to determine:

1. • whether the report should be referred to the Director of Prosecutions (CPS);

   • whether or not any person to whose conduct the investigation relates to has a case to answer in respect of misconduct, gross misconduct or no case to answer;

   • whether or not any such person’s performance is unsatisfactory;

   • what action, if any, we will take in respect of the matters dealt with in the report; and what other action (if any) we will take in respect of these matters, which in this case is re-investigation of your original allegations, if original investigation was flawed.

I have reviewed DI Deefholts investigation and after considering these points I am satisfied to the extent of the investigation that has occurred and I also as a result agree with the findings presented by DI Deefholts in their investigation report.

As a consequence I have taken the decision that the report does not need to be referred to the CPS.

I can also inform you that I have determined there has not been a breach of the professional standards by any officer involved in the investigation considering the findings.

Furthermore, the Police Reform and Social Responsibility Act 2011 requires me to consider if the findings of any case relating to a public complaint warrants referring an officer to our Unsatisfactory Performance Process (UPP). Having reached the conclusion that I have, I do not consider that UPP is appropriate in respect of any of the officers concerned.

In addition to the points above I have also considered whether you received an appropriate level of service from the Metropolitan Police. This means how you were dealt with overall and not just by any one individual. After reviewing the circumstances of your complaint I am satisfied there has not been a failure identified in the way we dealt with you. Your 2 complaints are therefore not upheld.

When considering what actions should take place with any re-investigation of your original allegations. As stated in the investigation report, Section 11 of the Parliamentary Commissioners Act 1967 effectively shields scrutiny of PHSO investigations unless they are being investigated for alleged offences of perjury or breaches of the Official Secrets Act. Both your and a number of similar allegations, were submitted to the Metropolitan Police Department of Legal Services to review the legislation & took the advice of legal counsel who confirmed that as a Police Service we have no authority to investigate any further in the allegations that were made. These conditions remain so a re-investigation cannot be re-opened at this time.

We are grateful to you for raising this issue and giving us the opportunity to review the actions of those concerned. It is always useful to receive feedback on how our officers and staff perform; as an organisation it allows us to learn and develop and to identify ways we can improve our service in the future.

I appreciate you had complained to the IOPC (Independent Office for Police Conduct) originally who had sent your complaint to police to deal with. But if you do not agree with the outcome of this investigation or its findings you can appeal to the IOPC re this decision. The IOPC are the correct appeal body for your complaint as the initial information provided was such that criminal or misconduct proceedings are justified, where a complaint of this nature is proven. You have 28 days from the day after the date of this letter to make your appeal. The 28^th day is 4/5/2018. Appeals received after 28 days may not be allowed unless there are exceptional circumstances.

If you do decide to appeal, this is the address to write to:

Independent Office for Police Conduct, PO Box 473, Sale, M33 0BW

Further information about how to appeal can be found on the IOPC website or can be phoned via 0300 020 0096.

Yours sincerely,

Name Stuart Ryan

Rank/Grade Detective Superintendent Professional Standards Champion B/OCU SCO1 Homicide and Major Crime

Appendix G2 Not subject to special requirements

Investigating Officer’s Report

A. Introduction

1. Complaint background

You allege that public officials within the Parliamentary & Health Services Ombudsman (PHSO) are guilty of malfeasance in public office. More specifically they failed to identify any issues of concern within the Mid Stafford Health Trust who were later found guilty of causing preventable deaths and of similar failings within their investigations of the Morcambe Bay NHS Trust where there were findings of avoidable deaths of mothers and babies. I understand your allegation(s) of crime were forwarded to officers of the Metropolitan Police Special Enquiries Team (SET) for further investigation. I am advised that in July 2016 you were sent an outcome letter that explained the Metropolitan police service (MPS) where not able to investigate the practices of the PHSO as a consequence of statue law that prohibits disclosure of their records in all except cases of perjury and official secrets allegations. On the 2nd of September 2016 you complained to the IPCC in relation to the outcome of the SET investigation. The IPCC passed your complaint to the Metropolitan Police Professional Standards Unit. You alleged that there was a failure on the part of the Special Enquiry Team to record and properly investigate your allegation(s) and that you were not routinely or adequately updated with any progress as set out within charter requirements. Additionally that the MPS were part of a cover up to protect the PHSO. Det Insp Patrick Milford was required to investigate and in an outcome letter dated the 26th of February 2017 determined that the alleged crime had been recorded and investigated as far as was possible given the provisions of Section 11 of the Parliamentary Commissioners Act 1967 that prevents disclosure of PHSO investigations in all cases other then alleged breaches of official secrets and perjury. Failings in relation to poor contact were acknowledged and an apology offered. You appealed to the Metropolitan Police Professional Standards Unit on the basis that the matters alleged were serious and not suitable for local resolution. This was upheld and the case was passed to me for re- investigation as a public complaint with a right of appeal to the IPCC on the basis that if proved Metropolitan Police Officers had colluded in a cover up the matter might amount to gross misconduct.

The following is my report dealing with the investigation of your complaint.

2. Complaint Allegations (All allegations must be listed – confirm how these have been agreed with the complainant)

I have set out the heads of the complaint, as detailed below, on the basis of the e-mail appeal you sent to the IPCC and on which the appeal was allowed as set out in PC Claire Johnston’s (Professional Standards Appeals Unit) lettered dated the 25th of April 2017. I sent these heads of complaint out to you in a letter e-mailed to you on the 17th of October 2017 and you responded on an e-mail dated the 6th of November 2017 agreeing those which are set out below. Failure on the part of the Metropolitan Police Service to record or investigate your allegation of crime specifically of Malfeasance / Misconduct in a public office on the part of staff within the Parliamentary & Health Service Ombudsman (PHSO). That officer(s) within the Police enquiry team have colluded and or conspired to ‘cover-up’ misconduct on the part of the PHSO.

3. Person(s) Serving with the Police Subject of Complaint

I have considered the circumstances of the complaint made and consider that the alleged conduct subject of this investigation would not, if proven, justify the bringing of criminal or disciplinary proceedings. Therefore this investigation is not subject to Special Requirements because having conducted a scoping exercise I am satisfied that your crime was recorded and that written records exist to demonstrate the investigation was subject to scrutiny throughout. The allegation that there has been a police ‘cover-up’ appears to be based solely on the negative outcome of the Special Enquiry Team investigation in so far as their inability to investigate further must be as a consequence of a conspiracy to hide your alleged failing within the PHSO. There is no body evidence of evidence on which this allegation relies. The following officers/staff have been identified as being subject of your complaint(s); Detective Inspector Gail Granville.

4. Details of documents and accounts obtained during the investigation

The following items were considered during the investigation: Your e-mail to the IPCC dated 02/09/16 giving notice of complaint & all subsequent e-mail correspondence. Correspondence generated by Met Police Department for professional Standards scoping the general circumstances and responsibility for the investigation of your malfeasance allegation. Correspondence between yourself and Det Insp Milford including his outcome letter. Your E-mail giving notice of appeal against the determination of Det Insp Milford. Correspondence from PC Claire Johnston’s (Professional Standards Appeals Unit) lettered dated the 25th of April 2017 upholding your appeal and her grounds for doing so.

Crime report. Those parts of the Mid Staffordshire NHS Foundation Trust Public Inquiry that refer specifically to the PHSO. Those parts of the report of the Morcambe Bay investigation that refer specifically to the PHSO. There are no independent witnesses. I have obtained accounts from the following officers/staff: Detective Inspector Gail Granville.

B. Details of allegation(s) and investigation Each allegation will be considered separately and will show whether it has been upheld or not.

Failure on the part of the Metropolitan Police Service to record or investigate your allegation of crime specifically of Malfeasance / Misconduct in a public office on the part of staff within the Parliamentary & Health Service Ombudsman (PHSO). Your allegation of malfeasance was recorded on crime report number 6535421/15. Your allegation was one of a number of complaints levelled at the conduct of the PHSO by other members of the public who were also dissatisfied at a perceived lack of service and / or diligence in the performance of their statutory duty to investigate. In your e-mail to me dated the 6th of November 2017 you provided me with two internets links to inquiry reports as evidence in support of your allegation of malfeasance. I have reviewed those parts that relate specifically to the PHSO. D.I Granville’s investigation found that Section 11 of the Parliamentary Commissioners Act 1967 effectively shields scrutiny of PHSO investigations unless they are being investigated for alleged offences of perjury or breaches of the Official Secrets Act. At the request of DI Granville the Metropolitan Police Department of Legal Services reviewed the legislation & took the advice of legal counsel who confirmed that as a Police Service we have no authority to investigate any further in this instance. I have considered whether the enquiry reports, which you cite as evidence, might be sufficient to support a prosecution alone, on their own merit however I find that they do not. Though in the Mid Staffs NHS Foundation Trust Enquiry there was some criticism of PHSO investigative practice, namely a perceived over reliance on the clinical view presented by a Health Trust rather than seeking independent advice, this falls short of might what be required to prove malfeasance. This has to be considered in light of the fact that the Metropolitan Police investigation could not and cannot access PHSO investigation records in this or any other matter that might give some insight as to why an investigator chose to follow any particular line of enquiry or not as the case may be. This lack of ability to scrutinise coupled to a lack of transparency on the part of the PHSO effectively forestalls any effective investigation of PHSO activity. There is no direct

evidence that any PHSO official has acted unlawfully nor do I have any grounds to suspect that is the case. Please be assured that your case & the other similar complaints were considered at Command level within our organisation & further legal advice has been sought. To date the situation has not changed nor is this likely whilst statute law provides the protection that parliament must have intended. Working on the balance of probabilities, the evidence available to me and in the absence of any to the contrary, it is my opinion that this allegation should not be upheld. That officer(s) within the Police enquiry team have colluded and or conspired to ‘cover-up’ misconduct on the part of the PHSO. Det Inspector Granville assures me she had the investigation conducted to the highest professional standards. As set out above throughout the investigation she sought guidance from the Metropolitan Police Legal Services Department who engaged Queens Counsel to advise on the law governing the activities of the PHSO. Throughout the investigative process there was supervisory oversight and periodic management meetings. DI Granville has confirmed to me that she has nor ever had any personal interest(s) within the PHSO that might affect her objectivity and / or decision making processes. Working on the balance of probabilities, the evidence available to me and in the absence of any to the contrary, it is my opinion that this allegation should not be upheld.

C. Findings and Conclusions

Failure on the part of the Metropolitan Police Service to record or investigate your allegation of crime specifically of Malfeasance / Misconduct in a public office on the part of staff within the Parliamentary & Health Service Ombudsman (PHSO). My investigation found that your allegations was correctly recorded and investigated as far as was possible given the effect of Section 11 of the Parliamentary Commissioners Act 1967. The statute law effectively curtails third party investigation of PHSO activity. In light of the above I conclude that until such time as the statutory bar is removed an effective investigation cannot take place. You alleged that there was a failure to investigate your allegation. On the balance of probabilities, I am satisfied this was not the case. I therefore conclude that your complaint is not upheld. That officer(s) within the Police enquiry team have colluded and or conspired to ‘cover-up’ misconduct on the part of the PHSO.

My investigation found no evidence that the Police Enquiry Team colluded with any third party to cover-up misconduct. Your allegation appears to be founded in the fact that as there has been no satisfactory outcome to our investigation then it follows there must have been a cover-up. I can only refer you back the legislation in force that prevents the Enquiry Team progressing any further. The legislation is of course published and in the public domain should you wish to review if and reflect on this point. You alleged that the enquiry team led by DI Gail Granville colluded to cover-up misconduct of the part of the PHSO. On the balance of probabilities and in the absence of any evidence I find that this was not the case. I therefore conclude that your complaint is not upheld.

D. Investigating Officer

This report was compiled by:

Detective Inspector Simon Deefholts SC&O1 Homicide & Serious Crime Command. Major Investigation Team 8.