PHSOtheFACTS meeting notes presented to the MPS on 11th October 2016 to support our claims that the MPS could and should investigate the PHSO for misconduct in public office offences.

PHSO Pressure Group meeting with the Metropolitan Police 11th October 2016

Use of Section 15 of the HSC and Section 11 of the Parliamentary Commissioner Act 1967 to close all cases on the grounds that ‘the PHSO is legally prevented from disclosing the information obtained by them in relation to the complaints to the MPS’ is inappropriate for the following reasons:

  1. By concluding that the MPS is unable to conduct any criminal investigation into allegations of misconduct in public office the MPS puts Crown Servants above the law which is in breach of the rule of law.  This would create a constitutional crisis.  Police Federation Guidance as stated in ‘The Office of Constable’ confirms that no-one is above the law. 

The independent Office of Constable operates within, and is accountable to, the rule of law. The rule of law is the principle that no one is above the law. Perhaps the most important application of the rule of law is the principle that government authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps. The principle of the rule of law is intended to be a safeguard against arbitrary governance. The law must be accessible, intelligible, clear and predictable and must apply equally to all. It must also afford adequate protection of fundamental human rights. It is the independent and impartial holder of the Office of Constable who is tasked with upholding and enforcing the law.  ‘The Office of Constable’ 

  1. The MPS have not considered that it is possible to obtain evidence from other sources such as the complainant and the public body under investigation without any breach of confidentiality placed upon the Ombudsman.  [29]
  1. The MPS have not considered that individuals who put cases of MIPO forward to the MPS have already obtained ‘confidential’ evidence used in the investigation under the Data Protection Act 1998.  
  1. The MPS have not considered the ruling of the Information Commissioner’s Office following the Tribunal of ‘Cubells v ICO and Wrightington and Wigan and Leigh NHS Foundation Trust 2011 which confirmed that once the investigation or assessment is complete the privacy of the investigation ‘falls away’ as stated at point [31]

[29]. We are satisfied that section 15, read as a whole and particularly in the light of the exceptions to the prohibition, (which are clearly focused on the Ombudsman and no one else), should be interpreted as imposing a prohibition only on the Ombudsman and her staff

[31]. We do not think that our conclusion undermines the conduct of the Ombudsman’s investigation. It is required by HSCA section 11(2) to be conducted in private, which will result, directly or indirectly, in the imposition of an obligation on those contributing information or submissions to it to maintain the confidentiality of the process and not, for example, to disclose the lines of enquiry that the Ombudsman may be pursuing or the issues she is putting to those whose actions are being investigated. It does not follow that the basic information, detached from any indication of such lines of enquiries or issues, must remain secret, just because it has previously been made available to the Ombudsman as part of her investigation. And, once a report has been issued (or the Ombudsman has decided not to pursue an investigation – as she had done in this case, before the information request had been refused), the privacy of the investigation also falls away. 

  1. The MPS have not considered the Information Commissioner’s ‘line to take’ following this tribunal ruling which clarifies that any statutory bar would not apply to any information created by the regulator, nor information provided in general correspondence.  Therefore the MPS would have full access to this information.  This can be confirmed as Sir Alex Allan recently had full access to PHSO paperwork and was able to interview staff in his inquiry into the handling of Helen Marks letter to the Ombudsman. 
  1. The MPS have not considered that it is possible for them to apply for access to ‘excluded/special procedure’ material under Schedule 1 of PACE – Police and Criminal Evidence Act 1984.
  1. The MPS have not considered that it is possible to interview members of PHSO staff not as ‘witnesses’ but as ‘defendants’. 

Criminal investigation of PHSO staff members should be pursued by MPS for the following reasons:

  1. Our cases meet a number of the ‘public interest factors’ cited in the Code for Crown Prosecutors, namely:
  1. The defendant was in a position of authority or trust.
  2. There are grounds for believing that the offence is likely to be continued or repeated, for example by a history of recurring conduct.
  3. A prosecution would have a significant impact on maintaining community confidence.
  4. There is evidence that the offence was premeditated.
  5. There is evidence that the offence was carried out by a group.
  6. The evidence shows that the defendant was a ringleader or an organiser of the offence.

  1. An investigation of the evidence may well reveal other criminal offences committed by the public body concerned, by other regulators and/or the Ombudsman’s office, such as ‘conspiracy to commit misconduct in public office’ which was the offence used against Anthony France, Sun journalist who was found guilty of aiding and abetting.  The judge ruled that;

“Journalists who encourage or aid and abet their corrupt actions and do so without reasonable excuse or justification are equally culpable.  What occurred harmed the public interest.”   The same could be said of the Ombudsman’s office. 

  1. We can supply evidence of perjury as defined by the Perjury Act 2011.

5    False statutory declarations and other false statements without oath.

If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—

(a) in a statutory declaration; or

(b )in an abstract, account, balance sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return, or other document which he is authorised or required to make, attest, or verify, by any public general Act of Parliament for the time being in force; or

(c) in any oral declaration or oral answer which he is required to make by, under, or in pursuance of any public general Act of Parliament for the time being in force,

he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment, . . . F1, for any term not exceeding two years, or to a fine or to both such imprisonment and fine.

  1. We have evidence that PHSO have pre-determined a complaint and demonstrated bias which would meet the test of ‘the fair-minded observer’.  Our collective evidence demonstrates that there has been a serious departure from the proper standards which is not merely negligent but amounts to an affront to the standing of the public office held.  We can demonstrate that there has been an express agreement between PHSO and the public body to manipulate, ignore or hide evidence.  We have evidence of perverse and irrational decision making by PHSO and that they have not applied the standards that they say they are applying.  That PHSO have blatantly failed to understand the legal framework within which the public body was acting and so came to a perverse conclusion.  All of these elements have been advised to us as challengeable criminal offences by highly qualified QCs.  
  1. Evidence from the Patients Association demonstrates repeated bias by PHSO and failure to serve the public.  Thousands of people have been adversely affected and will continue to suffer until the Ombudsman’s office is held to account.  More cases of MIPO are waiting to be submitted to the MPS by the Pressure Group as new people have come forward following our action.  The MPS have a responsibility to victims of crime. 
  1. The purpose of the law ‘misconduct in public office’ is to ensure public confidence that public officials can be held to account for misconduct committed in connection with their official duties.  David Ormerod QC stated;

“It is vital that the public have confidence in their public officials and in the legal framework that sets the boundaries of their conduct.” 

Failure to investigate this matter by the MPS would therefore deny the weight of public interest; fail to restore public confidence and present parliament with a constitutional crisis by placing Crown Servants above the law.   

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