IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2018/00xx

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPELLANT’S GROUNDS OF APPEAL

Introduction

1. This is an appeal under section 57 of the Freedom of Information Act 2000 against a
Decision Notice FS50630924 issued by the Commissioner on 20 December 2017. These
grounds of appeal are served together with the appellant’s notice of appeal, in
accordance with rule 22 of the Tribunal Procedure (First-tier) (General Regulatory
Chamber) Rules 2009.

Background

2. The appeal concerns a request for information made to Humberside police (‘HP’)
subsequent to it refusing to investigate two allegations of perjury for which the accused
were liable to prosecution under section 89 of the Criminal Justice Act 1967. The first
concerned a Council employee of North East Lincolnshire Council (the ‘Council’) who
 had produced a false statement of truth in an application to the Magistrates’ court for a
council tax liability order against the Appellant in 2015. The second involved two
members of the public whose witness statements contained completely untrue accounts
and led to the wrongful conviction of the Appellant.

3. HP holds indisputable evidence proving beyond all doubt that the Council had
knowingly submitted a false statement to the court in order to persuade the judge to
grant a court order to enforce payment of Council Tax which had in fact been paid. In
respect of the wrongful conviction, HP holds evidence that the witness statements were
clearly unreliable and of questionable credibility and has detailed analysis highlighting
this and how their accounts conflicted with other material in the trial papers.

4. Both matters were reported as crimes to HP which it refused to investigate or record.

The Appellant’s options to address the injustice were pretty much limited to the
complaint and appeal process under the Police Reform Act 2002. That process was
embarked upon which ended with the same outcome in both cases, which was that:

“Humberside Police do not investigate allegations of perjury unless a request to do

so comes from the court themselves.” (the ‘Policy’)

5. The Appellant considered that an offence had been committed 1 by the force under
Section 26 of the Criminal Justice and Courts Act 2015 for failing to pursue all
reasonable lines of enquiry. The failure to investigate perjury in respect of the Council
matter, in addition to the Appellant incurring unwarranted court costs has led to him
being pursued by bailiffs with their fees adding hundreds of pounds to the criminally
engineered debt. The failure to investigate perjury in respect of the criminal matter has
resulted in the Appellant being convicted for an offence he has not committed and
incurred a direct financial loss of hundreds of pounds. However, the time spent dealing
with both matters over the protracted period through countless public bodies since,
renders the indirect loss incalculable.

6. The Appellant therefore furthered his line of enquiry by submitting a request to HP to

obtain ‘all related material (statutory or policy) which lawfully permits or advises

1
Under subsection (2) of Section 26 of the Criminal Justice and Courts Act 2015 a police officer "is liable, on
conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both)" if he fails under
subsections (5) and (6) of the 2015 Act to exercise a power for the purpose of achieving the detriment of another
person

1
 Humberside police that it may refuse to investigate allegations of perjury unless a
request to do so comes from the court.’ The complete contents of the request submitted
on 12 March 2016 is in the Commissioner’s Decision Notice (the ‘DN’) at para 5.

Grounds of Appeal

7. HP has been successful in persuading the Commissioner that the information requested
by the Appellant is not held and therefore has complied with section 1 of the FOIA.

8. The challenge here is simply that the reasons given by HP to the Commissioner for why
it holds no recorded information have no credibility in the context of the explanation.
The Commissioner initially acknowledges an anomaly at para 15 of the DN where it is
stated in respect of the allegations:

‘In this case the Commissioner will also consider how HP could have made the
following statement to the complainant: “Humberside Police do not investigate
allegations of perjury unless a request to do so comes from the court themselves"
given that it has stated that it does not hold the requested information.’

9. The drawn-out procedure undertaken by HP to determine that the information was not
held (paras 17 to 21, DN) arrives at the conclusion that the force was able to inform the
Appellant what its Policy was because it had been obtained from the CPS’ website
rather than because the information was held.

10. The Appellant’s view is that the Commissioner has simply gone along with the force’s
representations without challenge even though there are obvious inconsistencies. The
Commissioner accepts without questioning the force’s account which explained why it
stated it did not investigate perjury unless requested to by the court. This was claimed to
have ‘been made based on the specifics of the complainant’s related complaint to it and
advice from its legal team’ and ‘there was no requirement for the requested information
to be held as it would be a case by case decision, including taking legal advice’.

11. The statement plainly points to being a blanket policy decision, i.e., ‘Humberside Police
do not investigate allegations of perjury unless a request to do so comes from the court
themselves’. There is nothing that suggests that the statement was tailored towards either

2
 of the Appellant’s specific complaints. The meaning is so restrictive that no matter what
circumstances are relevant to an individual case, nor what legal advice is taken, it can
not change the position that the force categorically does not investigate perjury unless
requested to by the court.

12. The rationale for the information not being held, i.e., that decisions are based on a case
by case basis is not feasible in the context (above paras 10-11) and therefore does not
add any weight to the probability of the information not being held. A number of factors
yet to be considered point more to the balance of probabilities being weighted to a
greater extent in favour of the information being held with the possibility that the advice
on the CPS’ website was an opportunistic way of (eventually) justifying not
investigating perjury and exploited to respond to the Commissioner’s line of enquiry.

13. It is helpful to mention at this point that a complaint was made to HP’ Professional
Standards Branch regarding its refusal to investigate the Appellant’s allegations of
perjury. HP’ reasons were stated as follows:

“this is not a Police matter and is civil which I suggest you seek further advice
from a solicitor/legal advisor”

14. The outcome dated 1 January 2016 (Local Resolution) stated what its Policy was
regarding allegations of perjury. The decision was appealed to HP’ Appeals Body on 25
January. On 3 May 2016 supplementary representations were sent to the Appeals Body
after discovering the information on the CPS’ website which is referred to in para 20 of
the Commissioner’s DN 2. The relevant content, is as follows:

‘Some information I have discovered on the Crown Prosecution Service's website

states that the police do not have to be instructed by the court to investigate
perjury, which is what Humberside police claims to be its policy, see below:

“I understand that this matter has been heard in a court of law. The advice I
have obtained is that the issues you raise may be appeal points that could be
raised at any subsequent appeal hearings.

Humberside Police do not investigate allegations of perjury unless a request

to do so comes from the court themselves.”

2
The CPS website has been updated so the footnote link in the Decision Notice is no longer correct. The relevant
web page is as follows: https://www.cps.gov.uk/legal-guidance/judicial-comments#o

3
 Crown Prosecution Service's website

[https://www.cps.gov.uk/legal-guidance/judicial-comments#o]

Cases Involving Allegations of Perjury

“Where a judge or magistrate believes that some evidence adduced at trial is

perjured s/he can recommend that there should be a police investigation.

The absence of such recommendation does not mean that there is no

justification for an investigation.”

Also, the police force is making spurious statements because the matter is criminal
and not something you can appeal to another judge in civil proceedings.

I trust the above will be considered in the appeal.’

15. HP was alerted by the Appellant ‘that the police do not have to be instructed by the
court to investigate perjury’ (the CPS’ website) 5 weeks before the Appeals Body
outcome of 8 June upholding HP’ decision that perjury was a civil matter. The force did
not consider it relevant to refer to the CPS website in its assessment which is remarkable
given that it was raised by the Appellant and claimed to be relied on for its Policy
decision.

16. It is also remarkable that the decision in respect of the FOI request on 10 June 2016 (i.e.,
that no information relevant to the request was held) was not accompanied with an
explanation, for example that the information was not held because the CPS guidance
was relied on.

17. Bearing in mind that since 17 January 2017 when the Commissioner confirmed that the
case would be investigated up until the issue of the DN on 20 December 2017, almost a
year had passed. This was clearly excessive if all was required of the force was to
provide the Commissioner with its arguments in support of its position. The Appellant
had inadvertently reminded the force of its position more than a year and a half prior to
the issue of the 20 December DN on 3 May 2016 in his supplementary representations
highlighting the advice on the CPS’ website.

18. Apart from in all probability, the CPS website angle being opportunistic, the content
does not lend itself to being supportive of HP’ Policy and so does not add any weight to

4
 the probability of the information not being held. It is therefore questioned why the
Commissioner has been able to state (para 25 DN) that she is ‘satisfied that HP has been
able to explain how it could make the statement to the complainant about not
investigating cases of perjury as set out above, even though it does not hold recorded
information about this.’

19. The content of the CPS’ website most relevant to the matter was highlighted in the
Appellant’s 3 May 2016 supplementary evidence (see above para 14) as follows:

“Where a judge or magistrate believes that some evidence adduced at trial is

perjured s/he can recommend that there should be a police investigation.

The absence of such recommendation does not mean that there is no justification
for an investigation.”

20. The above does not advise police forces that they should ‘not investigate allegations of
perjury unless a request...comes from the court’. The above advice could not therefore
credibly have been the basis for HP’ Policy decision nor was there any justification for
the Commissioner to have been satisfied with the force’s full and final arguments in
support of its position.

21. The advice on the CPS’ website is expanded upon but none of it assists the force in
supporting its claim that its Policy decision has been obtained from there. Although the
following advises that an investigation should not take place unless it is recommended
by the court, the advice refers specifically to cases which are at the time under trial. (see
first paragraph):

“Other than in an exceptional case (i.e. on the recommendation of the judge or

magistrate) a perjury investigation should not take place until the conclusion of the
proceedings in which the perjury is alleged to have occurred.

Whether or not any suspected offence requires investigation is a matter for the
police to assess on the facts of each case.”

However, the second paragraph above does suggest that HP has referred to the CPS’
legal guidance to produce arguments in support of its position (see DN, para 21), but
this has been considered (above paras 10-12) and by its nature is a statement which
applies across the board and not geared toward individual cases.

5
 Motive to conceal the requested information

22. The Commissioner has stated that she has seen no evidence that HP had any reason or
motive to conceal the requested information. However, there has been a period of over
20 months from when the request was submitted until the DN was issued which should
raise suspicions in the direction of why. The typical lengthy delays in responding can be
contrasted with the response from HP on 10 June 2016 (that it held no information)
which it remarkably determined in approximately half a day from being asked to review
its original refusal under section 8(1)(c) because it considered that the Appellant had not
made a valid request.

Conclusion

23. The Commissioner has made a judgement that the requested information is not held
based on the balance of probabilities. The Appellant contests this and has provided his
reasons in these grounds of appeal which overall indicate that the probability of the
information being held outweighs the probability of it not being held.

24. For the reasons set out above the Tribunal is invited to find that the Commissioner could
not reasonably have been satisfied (based on HP’ arguments) that, on the balance of
probabilities, HP held no recorded information in relation to this request.

9 January 2018