NYE Submits Evidence to MoJ

Longstanding NYE contributor and National Union of Journalists (NUJ) Journalist Tim Hicks has submitted evidence to the Ministry of Justice investigation into Strategic Lawsuits Against Public Participation (SLAPPs).

His evidence concerns the use of SLAPPs by Scarborough Council (SBC) and North Yorkshire Police (NYP) to intimidate journalists and Internet Service Providers (ISPs) to stop them publishing information the public is entitled to know, but which individuals in those public bodies would prefer to be suppressed.

NYE Submits Evidence to Ministry of Justice

by TIM HICKS

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Introduction

The Deputy Prime Minister, Dominic Raab MP, has launched an urgent call for evidence in response to the challenges presented by the increasing use of a form of litigation known collectively as SLAPPs – Strategic Lawsuits Against Public Participation – against journalists.

The term SLAPP is used to describe abusive legal actions taken with the intention or effect of stifling debate on matters of public interest. Letters threatening legal action and excessive costs can cause articles to be pulled and worthy stories that are backed up by evidence to be abandoned, because the legal costs of defending an action are crippling. For many years, the super wealthy and public bodies have used SLAPPS to bully individuals, journalists and media outlets, thereby preventing coverage and undermining both freedom of speech, and press freedom.

SLAPPs can be characterised as an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means.

The Ministry of Justice is considering options for possible reforms including:

• Establishing a statutory definition of SLAPPs to help identify relevant cases and form the basis for their being subject to a separate case and costs management regime.
• Reforming existing court procedures to enable courts to manage SLAPP cases in a fair and proportionate manner. For example, whether the ‘strike out’ procedure for claims which are an abuse of process should be amended to include SLAPPs.
• Reforming the current costs regime including a proposal to introduce a costs capping system in SLAPP cases.

It has invited those who have been subject to SLAPPs, or who have an interest to share their experiences and the impact on them.

[Source: Ministry of Justice. (Extract) and NUJ Branch (Extract)]

SLAPPS represent a serious threat to freedom of speech, public accountability and the right of the public to have access to a free press. The NUJ has emphasised in its submissions to the Ministry of Justice (MoJ) the threat to press freedom and freedom of speech represented by SLAPPs. It has also asked its members to forward their experiences of SLAPPs to the Ministry of Justice.

I and my colleagues on the NYE have been subjected to intimidation by SLAPP or the threat of a SLAPP on three occasions, once by Scarborough Borough Council (SBC) and twice by North Yorkshire Police (NYP). I have now submitted evidence on these SLAPPs to the Ministry of Justice.

SLAPPS: The NYE’s Experiences

In all three cases, the actions were without any substance and did not go to court. But because both organisations are public bodies backed up by unlimited amounts of public money which is not under adequate financial control, it was impossible to defend the actions because of the crippling legal costs.

The impact on NYE journalists of these actions was to inflict enormous legal costs, stress and distraction on the individuals concerned – thereby deterring coverage and distracting them away from covering issues in North Yorkshire that the public had a right to know about.

The SBC SLAPPs

NYE journalists (who were at the time writing for the Real Whitby Magazine) revealed that Conservative Councillor and Mayor of Scarborough Peter Jaconelli had abused children and committed multiple rapes in Scarborough, with the full knowledge of both SBC and NYP. Real Whitby had also exposed abuses of expenses by SBC Councillors.

SBC was at the time led by the Conservatives, some of whom had been criticised in Real Whitby over their expenses.

In response, SBC’s solicitor Mrs Lisa Dixon wrote to our ISP demanding that it terminated Real Whitby’s ISP, which would have effectively closed down Real Whitby. She also threatened four journalists from Real Whitby – “The Whitby Four” – with civil action.

SBC also made allegations of benefit fraud against Nigel Ward, which were completely without foundation.

Full coverage here.

Private Eye coverage here.

When challenged by the BBC, SBC denied it had tried to close down Real Whitby and in response the BBC exposed it as having issued a falsehood. BBC exposure here.

SBC Head of Democratic Services Lisa Dixon

Threatened to use a SLAPP to close down a local media outlet, because it had criticised SBC Councillors – then tried to deceive the BBC.

Real Whitby’s ISP and “The Whitby Four” all stood firm in the face of this intimidation. Consequently, no legal action was taken. SBC obviously backed down because it knew there was no basis to its allegations and the threats of legal action were bogus, and a number of SBC Councillors voiced their opposition to what was obviously an attack on free speech. Nevertheless, Mrs Dixon’s threatened SLAPP achieved its primary objective of causing alarm and distress to “The Whitby Four” and temporarily discouraging further coverage – a classic example of using the threat of a SLAPP to suppress legitimate criticism of a public body.

The Conservative Leader of SBC at that time, Councillor Tom Fox, later said publicly in Full Council, that Real Whitby journalists should be subject to “threat and retaliation” in the form of legal action. Councillor Fox was previously the Police Officer in command in Scarborough and Whitby during the time that Jaconelli and Savile were indulging themselves raping children with impunity, while the Police did nothing.

The NYP SLAPPs

Real Whitby and the NYE had publicly criticised North Yorkshire Police over three major issues about policing in North Yorkshire:

1. We showed that North Yorkshire Police had ignored many complaints against Peter Jaconelli because he was a Conservative politician and against Savile because he was a celebrity fronting highly successful charity appeals.

This was arguably the worst case of Police corruption in the history of policing in North Yorkshire. The response of the Police was to deny the allegations and claim that there was no evidence of any crimes being committed by either man. However, the BBC investigated our claims and found them to be accurate. BBC investigation here.

The day after the BBC investigation was broadcasted; North Yorkshire Police referred itself to the Independent Police Complaints Commission (now IOPC) and subsequently admitted the allegations were true. NYP had to issue an apology and admitted that there were thirty cases of rape by Savile and Jaconelli acting individually or jointly against victims in Scarborough, including children that they had enticed into prostitution, as did North Yorkshire County Council. SBC has never done so, despite numerous appeals to the present Leader.

2. The NYE’s exposure of the case of a widowed and confused Old-Age Pensioner, Mrs Barbara Hofschröer, who was persuaded to sign her house over to her son and grandchildren, not understanding what she was doing. When she was taken ill on holiday, they changed the locks and tried to sell her home and pocket the proceeds – thereby making her homeless and stranded abroad. In my view, a clear case of adult abuse and fraud by abuse of position and a blatant contravention of Force Safeguarding policy.

However, North Yorkshire Police refused to intervene or do anything to protect Mrs Hofschröer, because it was at that time following an unlawful policy of not getting involved in cases of abuse against the elderly if it involved family members. Our coverage resulted in questions being asked in parliament.

3. The NYE’s exposure of misuse of Police funds by Chief Police Officers over their expenses. This revealed amongst other things that the Chief Constable and Deputy Chief Constable had received tax free payments of £100,000 and had not been rquired to account for them, and another Chief Police Officer had all the costs of his hobby paid for with Police funds.

This was all hugely embarrassing for North Yorkshire Police which, for the first time, was coming under effective media scrutiny.

In retaliation, NYP abused its powers to initiate a SLAPP against me under criminal law. It tried to have me arrested and charged with harassment of Mrs Hofschröer’s son and grandchildren, on the basis of the wild allegations made by her other son and carer Peter, who had mental health issues and is now permanently incarcerated in a secure mental hospital.

This operation was codenamed OPERATION ROME and was led by the Chief Constable as Gold Commander. FOI responses subsequently disclosed that this exercise cost North Yorlshire ratepayers £410K.

Under normal circumstances, a harassment prosecution would never have been authorised in a case like this and would have been led by a Uniform Branch Constable. It was obvious that the Hofschröer case was being used as a pretext to prosecute me over legitimate criticism of NYP and the Chief Constable’s expenses. I stood firm and refused to remove my articles criticising NYP from Real Whitby.

This action had no basis in law or chance of success and predictably the Crown Prosecution Service (CPS) refused to authorise prosecution. It nevertheless caused me anxiety and legal expense and for the period I was under investigation, based on the legal advice I received, I had to defer coverage of this issue. Again, a model example of a successful outcome for a SLAPP.

The second NYP SLAPP was codenamed OPERATION HYSON and took the form of a civil action for harassment against myself and fellow NYE community journalist Nigel Ward. Further FOIA requests proved inconclusive but it has been conservatively estimated that a further £600K was wasted. Over one million pounds of ratepayers’ money down the drain. The action was issued on behalf of Senior Police Officers, a Conservative Politician, Mrs Hofschröer’s son and her grandchildren (who had locked her out of her own home and were trying to personally benefit from selling it). All of these were provided with Police funding and stood to benefit from damages had the case ever been successful.

The SLAPP demanded an injunction on any further coverage, damages and costs. This would restrict free speech; prevent media coverage and inflict anxiety, and excessive legal costs on journalists. All typical objectives for a SLAPP

Although the legal advice I had was that if the case went to court I would win. The costs of this – particularly should NYP choose to appeal – would be prohibitive and I had no choice but to settle. This illustrates the brutal reality of a SLAPP. A journalist or individual cannot take on a public body with access to unlimited public funds, or a wealthy individual or corporation and win, because it will keep on dragging out the action through appeals until the journalist runs out of money, thereby winning by default.

The case was deliberately dragged on by the Police and at the end of it I was exhausted. The stress was enormous. I was forced to spend £22,500 on legal fees, while the plaintiffs all had their costs paid by the taxpayer. The tactics used by NYP were classic for a SLAPP.

In the end I had to settle. NYP did not get an injunction, damages or costs, but I had to admit liability, agree to a two year moratorium on coverage and agree to take down some articles (which were so old no one read them anymore). Had I not settled, I would have been bankrupted by the legal costs. I take some comfort from the fact that in real terms, this settlement was not of any material benefit for NYP.

Mr Ward held out to the bitter end and, following His Honour Judge Mark Gosnell’s sardonic rhetorical question “Why are we here?”, was settled in minutes by Mr Ward accepting an offer merely to request the removal of five seldom-read articles in consideration of the sole remaining Claimant (the Conservative politician) agreeing to stay out of public life for two years.

This therefore represents another classic example of a SLAPP intended to silence journalists with the threat of the cost of legal action until they abandon their coverage.

The following Private Eye article covers the above three SLAPPs quite well.

The use of SLAPPs was part of an ongoing campaign against NYE journalists which continues to his day. Shortly after OPERATION HYSON failed, NYE journalists were proscribed by NYP and then by the then  Police, Fire & Crime Commissioner for North Yorkshire, Julia Mulligan. SBC has also proscribed all NYE journalists. It recently deployed security guards to try and remove NYE journalist Nigel Ward from a public meeting he was entitled to observe.

The effect of the SLAPP and associated actions was to inhibit the NYE as a media outlet from holding public bodies to account. This still continues. The NYE is still pursuing issues over the following potential misuses of Police funds:

• Why were police funds paid to a Conservative politician to finance legal action against NYE journalists when this was not authorised by a decision notice?
• Why PFCC Mulligan, Chief Constable Jones and Chief Executive Carter authorised hundreds of thousands of pounds to be spent on legal action against NYE journalists for criticising North Yorkshire Police over its failure to arrest Jimmy Savile and Peter Jaconelli?
• Why PFCC Mulligan, Chief Constable Jones and Chief Executive Carter authorised hundreds of thousands of pounds to be spent on legal action against NYE journalists, when both Ms Carter and Chief Constable Jones had conflicts of interest in this decision which they did not declare?
• Why PFCC Mulligan, Chief Constable Jones and Chief Executive Carter authorised hundreds of thousands of pounds to be spent on legal action against NYE journalists on behalf of individuals unconnected with the police, who had locked an old age pensioner and World War 2 veteran out of her home while she was ill abroad. Then tried to sell it from under her and keep the funds for themselves? (In my view an offence of fraud by abuse of position).
• Why were expense payments made to Deputy Chief Constable (DCC) Tim Madgwick for pursuing his private hobby activity of being a Board Member of the Special Olympics Great Britain (SOGB)?
• Why did DCC Madgwick have a day trip to Dublin paid for by expenses, for which no explanation is given and which appears to be unconnected with his police duties?
• Why were expense payments made to Ms Joanna Carter the former Chief Executive of the Office of the Police and Crime Commissioner for North Yorkshire of £1,937.38 without disclosing what they are for?
• Why were expense payments made to Chief Constable Winward for the full cost of attending FBI National Academy Alumni Association (FBINAA) conferences in multiple European cities which were not disclosed openly on the NYP website with an itinerary and training programme, appear to be of dubious training value and include time for (variously), sightseeing, shopping, networking and banquets?

Chief Constable Lisa Winward

Participated in a SLAPP against the NYE to prevent lawful media scrutiny and is currently refusing to explain her justification for charging a weekend in a four-star hotel in Bristol to Police funds.

• Why Chief Constable Winward was paid expenses for staying in the Four Star Bristol Marriott Royal Hotel from Friday 22nd September 2017 to attend an FBINAA conference that started on Monday the 25th of September (cost £354.48), when she should have booked one night for the 25^th of September? (The current cost of a single room is £97.00).
• Why Chief Officer’s expenses from 2013 onwards were paid without adequate disclosure of what purpose the expenditure was for on the force website, whilst other forces in the UK give full disclosure?
• Why all Commissioner Mulligan’s expenses from 2016 onward were paid without adequate disclosure of what purpose the expenditure was for and do not comply with the Elected Local Policing Bodies (Specified Information Order) 2011 as amended?
• What was the reason Chief Constable David Jones of North Yorkshire Police visited Northern Ireland in September 2014 and why was it charged to NYP through his expenses?
• What was the reason Chief Constable David Jones of North Yorkshire Police visited Northern Ireland on the 9^th and 10^th of May 2017 and why was it charged to NYP through his expenses?
• Why did Chief Constable Maxwell have a trip to the Edinburgh Tattoo paid for by expenses?

To this day, the NYE has never been able to obtain any answer from successive Chief Constables, the Officers involved, or from successive Police, Fire & Crime Commissioners, over the above issues. No one will respond to correspondence, release any information on what the justification for this expenditure is, or authorise publication of the witness statements submitted in OPERATION HYSON.

It is clearly in the public interest for the Police to make full disclosure, so North Yorkshire taxpayers can judge for themselves if the above expenditure represented value for money or was appropriate or proportionate. However, the possibility of having another SLAPP served on NYE journalists inhibits them from effectively pursuing these issues. This is obviously contrary to the public interest The public, after all, have a right to know how their money is spent.

I believe all three SLAPPs illustrate the real dangers these actions have for freedom of the press and its ability to hold public bodies to account in the public interest.

I can only hope that the Ministry of Justice investigation will prohibit their use, so that public servants will no longer be able to siphon off public funds to harass journalists for their own personal or party-political best interests.

Right of reply

Chief Constable Winward, Police Fire and Crime Commissioner Metcalfe and Mrs Lisa Dixon were all provided with a draft copy of this article and given the opportunity to comment.

If you are mentioned in this article and do not agree with the views expressed in it, or if you wish to correct any factual inaccuracy, please let me know using the letters@nyenquirer.uk email address and your views and a correction will be published if appropriate.