Richard Hook v The Clerk of Lancashire Police Committee 19 Mar 1980 Supreme Court (Police)

1976 Chief Constable of Lancashire “goings on”. It is not clear what these were.

A sergeant reported them to HMIC who asked the Police Authority to carry out an investigation, whose report was the Osmond Report.

The report disclosed a disgraceful set of affairs not only with the Chief Constable but also others. The Chief Constable was dismissed but the report was kept secret.

parr-lancashire                                                            Disgraced Stanley Parr

A new person on the Police Authority felt he had the need to see it to do his job and he was refused so this court case started. He was refused by this as well.

I publish this, as it is good to shine light on corruption in public officials, but also because Cyril Smith was MP at this time in Rochdale, Lancashire and abusing children and was not investigated properly.

Detective Sergeant Harry  Roby was the hero  who reported the “goings on” see  Lancashire Telegraph Downfall of Lancashire’s ‘untouchable’ police chief recalled [3]

 

[1980] EWCA Civ J0319-1

In The Supreme Court of Judicature

Richard Talbot Hook

v.

The Clerk to the Lancashire Police Committee

Royal Courts of JusticeWednesday, 19thMarch1980

The Master of the Rolls (Lord Denning)

(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln’s Inn, London, W. C.2).

MRS. J. SMITH (instructed by Messrs. Rooks Rider & Co., London agents for Messrs. J. K. Lawson & Co.) appeared on behalf of the Appellant.

MR. M. B. McMULLAN (instructed by the Solicitor, Lancashire County Council) appeared on behalf of the Respondent.

THE MASTER OF THE ROLLS: In 1976 rumours were rife in Blackpool. Gossip abounded. About the goings on of the Chief Constable of Lancashire. He lived in the town. Not only about the Chief Constable himself. But other police officers too. And well-known citizens. These were the sort of ruinous: It was said, that in motoring cases, some offenders were not prosecuted when they ought to have been; that firearm certificates were issued to friends and acquaintances when they ought not to have been; that police cars were used for private purposes; and that there were close associations with undesirable characters.

There was at any rate one courageous member of the police force. He was a sergeant. He reported these goings on to Her Majesty’s Inspector of Constabulary and to the local Member of Parliament. They took it up with the Home Office who regarded it as so serious that they asked the Police Authority to carry out an investigation. Now the Police Authority is a county authority. It is established under the Police Act 1964. It consists as to two-thirds of county councillors: and one-third of magistrates. It is its duty to “secure the maintenance of an adequate and efficient police force for the area”: and to provide such buildings and so forth as may be required for police purposes.

At the suggestion of the Home Office, the Police Authority appointed a very distinguished police officer, Sir Douglas Osmond, the Chief Constable of Hampshire, to hold an inquiry into the complaint. These were his terms of reference:

“To investigate the allegations made by the Sergeant … and to follow up any other matters that may come to light during the investigation as calling for further inquiry” and to report:

“… on what, if any, evidence may be found which calls -for further and formal action “by the Police Authority”.

That was on the 20th August and the 6th September, 1976. All was done. Sir Douglas Osmond made his investigation. He made his Report on the 22nd December, 1976. He sent a copy of it to the Home Office, to the Director of Public Prosecutions, and to the Clerk to the Police Authority of Lancashire. It disclosed a disgraceful state of affairs, not only in regard to the conduct of the Chief Constable himself, but also of the conduct of others. As a result of it the Chief Constable was afterwards dismissed: but that comes later in the story. Meanwhile I have to say what happened to Sir Douglas Osmond’s Report. At first the Clerk did not put the Report before the Police Authority. Instead he consulted the Chairman of the Police Authority and, with his approval, sought the opinion of leading counsel upon it. Counsel in giving his opinion took it upon himself to criticise Sir Douglas Osmond’s Report in no uncertain terms, saying:

“There are aspects of Sir Douglas Osmond’s Report which frankly cause me anxiety. He has considerably extended his terms of reference … He has not merely listened to but recorded allegations against the Chief Constable which were frankly expressed to be’gossip’,’rumour’ and hearsay … The Authority would be wise to disregard these aspects”.

There are other parts of counsel’s opinion in which Sir Douglas Osmond’s Report was criticised very severely.

Now we have not seen Sir Douglas Osmond’s Report: but I must say that I regret that it was subjected to this criticism before the members saw it. When a responsible officer of the standing and reputation of Sir Douglas Osmond makes a report, I should myself assume that he has kept within his terms of reference. I see nothing wrong in his setting out rumours and gossip and hearsay. These are often such as to call for further inquiry: so as to see if they are well-founded or not. My inquiry years ago into the Profumo affair was provoked by gossip and rumours and hearsay. It seems to me that if the rumours and hearsay were so serious as to cause widespread concern – they should be inquired into. If only to reassure the public and to allay the distress of those under suspicion. No doubt Sir Douglas considered these to be sufficiently serious to merit further inquiry. So he was entirely right to set them out in his Report.

THERE IS A “LEAK”

Having got counsel’s opinion, the Clerk called a special meeting of the Police Authority on the 24th January, 1977. It was to consider Sir Douglas Osmond’s Report. It was circulated with the agenda. In it the Clerk set out in full the advice of counsel with all his criticism of the Report. The Clerk also expressed his concern about possible legal proceedings for defamation and advised the members to take “the greatest possible care to ensure that the Report does not get into the wrong hands”. That was very good advice. Sir Douglas Osmond’s Report would be privileged in the hands of the members of the Police Authority to whom it was addressed: but not if it was handed to other persons.

Now someone did “leak” the Report. Large parts of it were published on the 25th February, 1977 in the Lancashire Evening Post. Much of it was defamatory, not only of the Chief Constable but also of other persons. The County Hall of Lancashire was aghast by the publication. On all lips was the question: Who was responsible for the leak? The Clerk inquired of everyone. No one owned up. It might have been a member of the Police Authority. It might have been one of the staff at County Hall: or one of the many other people who had access to it. If you include all grades, I suppose it would be 100 or 200 persons. No one knew. No one ventured a guess.

The newspaper was undoubtedly taking a risk in publishing Sir Douglas Osmond’s Report. The publication to the newspaper was not privileged. Some time later they paid for it. We are told that three libel actions were brought. A police officer was awarded £10,000 damages by a jury.

On the 11th March, 1977 the Police Authority met and considered the “leak”. All members were asked to surrender their copies of the Report to the Clerk immediately.

At that meeting and another on the 31st March, 1977 the Police Authority took action on some parts of Sir Douglas Osmond’s Report. They appointed a tribunal to inquire into the allegations against the Chief Constable himself. They referred some matters to the District Auditor for investigation and report. They referred other matters to the Acting Chief Constable. But there were many matters in the Report on which action had been deferred: and no action had been taken.

THE POLICE AUTHORITY IS RE-CONSTITUTED

Now before anything else happened, the Police Authority was completely re-constituted. This was because the local government elections were held on the 5th May, 1977. Some old members retained their seats. Some new members were elected. The result was that the County Council had to re-constitute the Police Authority. All members were appointed afresh but some had more experience, having been on it before. One of the new members was Mr. Hook of 53 Ansdell Road, Blackpool. He was elected to the County Council to represent Blackpool Number 4 District. He took his place and was immediately appointed to the Police Authority as one of the County Council representatives.

Ever since that time Mr. Hook has asked to see Sir Douglas Osmond’s Report. He felt that he should get himself up to date with all that was under discussion. But he has always been refused. Time after time he has asked: but always refused. The Clerk advised the Authority not to disclose the Report to him. The Clerk said that the advice was based on the opinion of leading counsel. None of the new members have been allowed to see it. The old members (about 20 of them) have seen it. But none of the new members (about 10 of them) have. Mr. Hook has made an affidavit in which he sets out fully his reasons for wanting to see the Report. He says that there were many matters still outstanding which were to be considered, such as (i) the report of the Disciplinary Tribunal about the Chief Constable, his possible dismissal, and the appointment of a successor; (ii) the reorganisation of the Police Force, including the integration of the Blackpool Force with the rest of the county: (iii) the appointment of a prosecuting solicitor, and, if recommended, the consideration of candidates; (iv) the use of police cars for private purposes of the police themselves and of other citizens, and (v) the conduct of the Chairman of the Police Authority himself.

The Clerk to the Police Authority has made an affidavit from which it appears that there are several matters still outstanding for consideration. He says that those parts of Sir Douglas Osmond’s Report will be given to the new and old members of the Police Authority. But he makes this significant exception which runs through the whole of this case:

“Access is only being withheld to those parts of the report which contain matter potentially damaging to or defamatory of third parties”.

THE RESOLUTION OF THE POLICE AUTHORITY

Some of the new members and Mr. Hook himself felt so strongly that they should be allowed to see Sir Douglas Osmond’s Report that the matter was debated at a special meeting of the Police Authority on the 22nd February, 1978. The Clerk reported counsel’s advice as follows:

“As the original report and statements contained damaging and in some instances clearly defamatory allegations against certain individuals unconnected with the police force, Counsel felt that if they were to be published without there being a duty to publish them, there was a danger that the privilege which was attached to the original publication to the Committee would be lost. Publication to members of the Committee would be a sufficient publication for the purpose of defamation proceedings. In all the circumstances, Counsel considered that the safest course to adopt would be to refuse the members concerned access to the documents in question.

“… There was no objection to such parts which do not have defamatory connotations being circulated”.

RESOLVED: (23 members voting in favour and 3 against) that the advice of leading counsel be accepted and that those parts of Sir Douglas Osmond’s Report which contain damaging and potentially defamatory references to third parties should not be made available.

Now Mr. Hook challenges that decision. He applied to the Divisional Court for a judicial review. It is in the nature of a mandamus to compel the Clerk to the Police Authority to provide Mr. Hook with an unabridged copy of Sir Douglas Osmond’s Report: on the ground that it is necessary for him to read the full Report in order properly to perform his duties.

Now I desire to say at once that Mr. Hook’s integrity is accepted to be of the highest. So are his motives. He honestly believes that he should be allowed to see Sir Douglas Osmond’s Report in full – so as to be able to do his duty by the people of Blackpool whom he represents. He cannot know the details, of course, because he has not been allowed to see it. Nor can we – for the same reason. We have not been allowed to see it. No one suggests that Mr. Hook would “leak” it. He does not even ask for a copy of it. All he asks is that it should be placed on “deposit” just as other confidential reports are. That means that it should be placed in a private room for him to read on his own. He does not want to take notes of it. Just to read it: and keep the contents to himself: so as to be better informed at any subsequent consideration by the Authority.

THE LAW

This case raises directly the question: What right has a committee member to see the documents belonging to the committee or addressed to it? Most of the cases in our books concern different rights: such as the right of a ratepayer to inspect the documents of the county, see The King v. Staffordshire Justices (1837) 6 Ad. & El. 84 ; or the right of a local government elector to inspect the documents of the local council, see The King v. Godstone (1911) 2 King’s Bench 465 , Wilson v. Evans (1962) 2 Queen’s Bench 383 and section 228 of the Local Government Act 1972; or the right of a shareholder to inspect the books of the company, see Davies v. Gas, Light & Coke Co. (1909) 1 Chancery 702 , Bank of Bombay v. Suleman (1908) 24 Times Law Reports 698 : or the right of the member of a trade union to inspect the books of the union, see Dodd v. Amalgamated Marine Workers’ Union (1924) 1 Chancery 116. The members of those bodies are not in conduct of its affairs. They have to show a sufficient interest in order for them to gain access to the books. This case is different. We are concerned with the members of a committee who have themselves the conduct of affairs.

THE PRINCIPLE

On principle it seems to me that when the affairs of a local government authority – or of a voluntary society — are entrusted to a duly appointed committee, then each of the members has ex officio – by virtue of his membership – an interest in all the affairs of the committee: and, by virtue of that interest, he has at common law a right to see and inspect all the documents of the committee – whether they relate to the past affairs or to the present affairs of the committee and whether they came into existence before or after he became a member. Often enough an old member says: “We had a point like this some time ago. Let’s look up the papers and see what we did then”.’The new members have a right to see the papers equally with the old members.

ITS RECOGNITION

This right was explicitly recognised in Rex v. Hampstead Council, Ex parte Woodward (1917) 116 Law Times 213. The council was represented by Mr. Macmorran, K. C. who was the acknowledged expert of his time on local government law. Lord Reading L. C. J. said (at page 215):

“Prima facie Mr. Woodward has a common law right to the production of documents which have come into existence as documents addressed to the Council or by the Council, of which Mr. Woodward was a member. As to that there is no dispute whatever. Mr. Macmorran, representing the Council, has stated from the first moment of his appearing before us to show cause that he does not dispute the general principle which I have just enunciated”.

That was a right which a few years earlier a Mr. Wrightson had successfully asserted – when he was allowed to see an agreement which the council had made before he became a member, see Rex v. Southwold Corporation, Ex parte Wrightson (1907) Law Times 431.

But then in Woodward’s case Mr. Macmorran went on to state an exception to that general principle. The burden was on the council to bring the case within the exception: because Lord Reading went on to say:

“I think that Mr. Salter is right when he contends that the burden is upon Mr. Macmorran’s clients to establish the fact bringing the case within the exception”.

THE EXCEPTION

Now the exception to which Mr. Macmorran referred was this: It is when the member is not acting bona fide (out of his interest in the affairs of the committee) but is acting “with some indirect motive or purpose”. In that case a man called Arlidge had an appeal against the council over a closing order. It was shown that the councillor Mr. Woodward was not actuated by the public interest. He was actuated by an indirect motive. He was seeking to help Arlidge make good his case against the council; so he was not allowed access.

A RIDER

Now, in addition to that principle and the exception, there is a rider: It applies when a council appoint a special committee to deal with a particular aspect of its affairs. In that case, each member of the special committee is entitled – by virtue of his membership – to see and inspect all the documents of the special committee itself. But the other members of the council are not automatically so entitled. They are not entitled to a roving commission over all the papers of the special committee. If another member of the council wishes to see the confidential documents of the special committee, he can only do so if it is reasonably necessary to enable him properly to perform his duties as a member of the council. That was why Mr. Conlan failed in Rex v. Barnes Borough Council, Ex parte Conlan (1938) 3 All England Reports 226. The Barnes Council were involved in litigation with the Ranelagh Club. They appointed a special committee to defend the action. Mr. Conlan refused to become a member of the special committee – because he was against the council’s defence. He wanted them to lose. Then afterwards he demanded to see the case to counsel and the opinion of counsel which the special committee had obtained. Perhaps he wanted to tell the other side about it’. That was going too far.

But if Mr. Conlan had been a member himself of the special committee, I have no doubt he would have had a right to see the case to and the opinion of counsel. Here Mr. Hook is in a like position. He is a member of the Police Authority which is a very special committee dealing with these affairs.

APPLIED TO THIS CASE

In this case Mr. Hook is himself a member of the Police Authority. He is completely bona fide in asking to see the Report of Sir Douglas Osmond. He honestly believes that it

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contains matter which he ought to be able to see – so as properly to perform his duties as a member. His honesty is not questioned. If he had some indirect or improper motive in asking to see it – as, for instance, if he wanted to tell it to outsiders – to “leak” its contents – or to use it so as to enable someone or other to bring a libel action – then he might well be refused access to it. But the burden would be on the council to prove that he had such an indirect or improper motive. They have no evidence of it – nor indeed do they suggest it. So his right is intact. It should be given effect – unless the point about “damaging and potentially defamatory references” is a good one.

THE RESOLUTION OF THE 22nd FEBRUARY, 1978

It is plain from the words of the Resolution that the 23 members who voted for the Resolution did so because they thought “the advice of leading counsel be accepted”. I can understand their point of view. Left to themselves, many of them would have thought it right for Mr. Hook to see the whole of Sir Douglas Osmond’s Report. But they would feel that they could not go against the advice of leading counsel. Even so, it is significant that three were stout-hearted enough to go against it.

Now that advice was of a very special kind. It was that the Authority should not disclose “damaging and potentially defamatory references to third parties”. Putting it bluntly, leading counsel advised that there should be a cover-up – for that is what it comes to – a cover up of the damaging and potentially defamatory references to third parties – because he thought there was a danger that defamation proceedings would be brought against the members of the Police Authority or their Clerk.

[1980] EWCA Civ J0319-1

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COUNSEL’S ADVICE

I am sorry to have to say it: but I must do it. In my opinion that opinion of leading counsel was erroneous. It is plain to my mind that any publication made to the new members as well as the old would be protected by qualified privilege. Take Mr. Hook himself. If he has a right to have access to the Report – as I believe he has – then the Clerk to the Police Authority is bound to let him see it. There would be a duty on the Clerk to show it and a corresponding interest on Mr. Hook to see it. So this case comes plainly within the test enunciated by Lord Atkinson in Adam v. Ward (1917) Appeal Cases at page 334 and repeatedly approved in later cases. Apart from this, I can see no possibility of any outsider knowing that the Report was seen by Mr. Hook – or being able to prove it – or get any damages for it. If anyone is libelled in the Report, that person will have had his action against the Lancashire Evening Post. He could not possibly prove any extra damage by the Clerk showing the Report to Mr. Hook.

To my mind, therefore, counsel was wrong in the advice which he gave to the Police Authority. There was no danger whatever in letting Mr. Hook see Sir Douglas Osmond’s Report. On the 22nd February, 1978 the Police Authority were misdirected in point of law. Their Resolution therefore cannot stand. It should be set aside, see Secretary of State for Employment v. ASLEF (1972) 2 Queen’s Bench at page 493 , approved by Lord Wilberforce in Education Secretary v. Tameside (1977) Appeal Cases at page 1047.

It might have been different if all the members – each equally well-informed – had resolved that Sir Douglas Osmond’s Report had been fully implemented and there was no need for

[1980] EWCA Civ J0319-1

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it to be shown to anyone any more – not even to the old members, let alone the new members – for any purpose whatever. Just as a judge can order offending matters in an affidavit to be expunged from the record, so can a police authority order a report to be expunged and no access be given to it. But, in order that such a Resolution should be valid, it would have to be made by a valid Resolution – arrived at in a meeting in which all members were equally well-informed. That was not the case here. The new members did not know what was in Sir Douglas Osmond’s Report. They did not know whether further action was needed or not. It is not permissible for a caucus of old members to exclude new members by keeping them in the dark.

CONCLUSION

Mr. Hook has taken on this litigation at his own expense. He has not got legal aid. He failed in the Divisional Court and was ordered to pay the costs there of the other side as well as his own. He has appealed to this court, risking another bout of costs. He has done it as a matter of principle – because he believes honestly that there are matters in Sir Douglas Osmond’s Report which he should see – so as the better to serve those in Blackpool whom he represents. I can see no reason for his being refused unless it be either that he is not to be trusted and might “leak” its contents or that there is a desire to “cover up” the references to others which are damaging or defamatory. Either of those reasons would be so unworthy of this Police Authority that I cannot think that they entertain them. As I read their Resolution, they only refused him access because they were advised by counsel. That advice was, in my opinion, erroneous. It misled them into a wrong decision. But

[1980] EWCA Civ J0319-1

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for it, they would have directed the Clerk to allow him to see the Report. I know that some time has elapsed. It may be too late now for it to be much good for him to see the Report. But it can do no harm. As a matter of simple justice, I think his stand was justified and should be vindicated by this court. I would allow the appeal and grant a mandamus ordering the Authority to let him see the Report.

LORD JUSTICE WALLER: This is an application by Mr. Hook for judicial review of a decision of the Police Committee of the Lancashire County Council made on the 22nd February, 1978. The decision made by the committee was that the Osmond Report which had been made to the committee in 1976 and which had been withdrawn from the committee in early 1977 should not be shown to the members of the committee in 1978. The Divisional Court on the 18th July, 1978 refused the application and Mr. Hook now appeals to this court.

The Osmond Report was a report made by Sir Douglas Osmond at the request of the committee in the following circumstances. When Her Majesty’s Inspector of Constabulary was making an inspection in Lancashire during the summer of 1976 a sergeant in the Lancashire Constabulary asked to see him and made a number of allegations about the conduct of the Chief Constable. The Home Office wrote to the Police Committee of the Lancashire County Council summarising those complaints. As a result Sir Douglas Osmond, the Chief Constable of Hampshire, was invited to enquire into the complaint, and on the 7th August, 1976 he started his investigations. His terms of reference were “To investigate fully the matters which are the subject of the complaint contained in the Home Office letter dated 20th August, 1976, and a report to be produced on what if any evidence may

[1980] EWCA Civ J0319-1

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be found which calls for further and formal action by the Police Authority under the Police Act and disciplinary regulations, together with any recommendations in relation to the investigation which may be deemed necessary to be brought to the attention of the Police Authority”. The Osmond Report was received by the Clerk on the 17th December and on the 22nd December the Director of Public Prosecutions wrote saying that after consideration he thought the matter should be disposed of by the Police Committee. The Clerk wrote to the members of the committee on the 6th January saying that he was taking the advice of leading counsel, which advice was received on the 13th January. On the 18th January a meeting was summoned for the 27th January to consider the Osmond Report and the agenda included Counsel’s Opinion. In my opinion the Clerk acted wisely in obtaining the opinion of counsel before putting the report before the Police Committee. He was endeavouring to present the committee with independent advice. If he had not obtained such advice the Clerk might have been required to advise the committee about personalities whom he knew, thus laying himself open to criticism. Leading counsel introduced his advice with the following preliminary observations:

“In my view it is of the utmost importance that the Authority bear in mind that they are for these purposes exercising a quasi-criminal judicial function and that even a Chief Constable is entitled to the benefit of the rules of natural justice.

“In most circumstances it would be unnecessary to utter cautionary words of that kind and I only do so because there are aspects of Sir Douglas’ report which frankly cause me anxiety. He has considerably extended his terms of reference

[1980] EWCA Civ J0319-1

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and has conducted a wide ranging scrutiny of the conduct of the Chief Constable. Some extension may well have been inevitable but it is clear that he has gone back through a number of years and has criticised and analysed some conduct of the Chief Constable even before his appointment to this office.

“Further, and this is perhaps much more important, he has not merely listened to but recorded allegations against the Chief Constable which were frankly expressed to be’gossip’,’rumour’ and hearsay. Also he has relied upon the actions of subordinates, particularly of Chief Superintendent Rydeneard when there was no evidence, express or implied, that the Chief Constable even knew of such actions. Such matters may or may not reflect upon the competence of a Chief Constable, but when considering whether he may have committed an offence or not they have no probative value. When coming to a decision on this matter, I think the Authority would be wise to disregard these aspects and keep in mind at any rate the basic essentials of Criminal evidence”.

Leading counsel then went on to consider what offences the evidence disclosed. I respectfully disagree with the Master of the Rolls that this was a criticism of Sir Douglas Osmond. I agree with the Master of the Rolls that Sir Douglas cannot be criticised for repeating gossip that he had heard because there might well have been other information which members of the committee might have, which would be relevant. On the other hand, counsel was equally correct in warning the committee not to act solely on gossip. In my judgment to have in mind “the basic essentials of criminal evidence” was wise and proper advice.

On the 27th January, 1977 a meeting of the Police Committee

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took place to consider the report and the committee resolved that the Chief Constable be given written notice of the complaints. A formal statement consisting of 50 pages was sent to him on the 8th February, 1977. There was a meeting on the 11th March at which the Chief Constable was present and it was then decided that all copies of the Osmond Report should be returned, and they were returned by the 31st March. One of the reasons for having the report returned was the nature of some of the potentially defamatory statements in it and the fact that there had been a leak to the press on the 25th February.

On the 5th May, 1977 there were elections and as a result of those elections on the 8th June new members were appointed to the Police Committee, including Mr. Hook.

It was decided to appoint a tribunal to consider the possible breaches of discipline. The charges were served in July and before the tribunal sat there was a further leak of an agenda marked “Strictly Private and Confidential” which included the offer of resignation by Mr. Parr. The tribunal presided over by Mr. Patrick Bennett, Q. C. sat on the 17th October and made its report on the 8th November. The tribunal found 26 out of 37 charges proved and recommended that Mr. Parr be dismissed. On the 6th December the committee resolved to consider the report. In addition the parts of the Osmond Report dealing with matters referred to the tribunal and the transcript of the evidence before the tribunal together with statements of the witnesses were made available to members of the committee. On the 20th December Mr. Parr was dismissed.

Mr. Hook, who had asked at an earlier stage to see the Osmond Report but understood that it would not be available until after the Chief Constable had been dealt with, then wrote,

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through his solicitors, asking to see the Osmond Report. On the 22nd February, 1978 the Police Committee met to consider his request. By this time 10 of the 30 members of the committee had been appointed since March 1977. At that stage certain parts of the report were available for inspection and certain parts were not, by a decision made on the 20th December. The report was divided into eight sections and they were either put on deposit, or not, as follows:

(1) Introduction – shown in full.

(2) The amplified complaint – not released.

(3) Alleged intervention of Chief Constable in granting a renewal of Firearms Certificates – not released.

(4) Alleged undesirable associates of the Chief Constable – not released.

(5) Alleged unnecessary intervention by the Chief Constable in normal processes – all those which were proceeded against disclosed, otherwise not.

(6) Misuse of transport – disclosed.

(7) Defects in leadership – not disclosed.

(8) Summary and recommendations – disclosed.

At the meeting on the 22nd February, 1978 the Police Committee had before them an agenda which included the opinion of counsel taken no doubt following the precedent in the Conlan case (to which I will refer later) together with the observations of the clerk. Counsel mentioned in his opinion that the original report and statements contained some defamatory allegations, some of which were based on rumour and common gossip. Counsel then addressed himself to the matter which had to be decided, and said: “The only matter which gives me cause to hesitate is whether such allegations could now be

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relevant to the general welfare of the force. This must be a debatable point but when I recollect that much of the report, including the introduction, conclusions and all parts relating to Mr. Parr’s proceedings, have already been made available incline to the view that to release the remaining documents would be dangerous”. Counsel had also mentioned and had in mind the possibility of leaks and the question of whether or not there would still be qualified privilege for a recirculation of the document. The question of whether or not one could successfully plead qualified privilege when recirculating papers containing rumours and gossip must be debatable. The circulation of rumours and gossip is obviously undesirable in the ordinary way and the fact that it might be difficult to defend if recirculated must be a matter which the committee should take into consideration. The clerk in presenting the agenda to the meeting specifically drew attention to some unpublished parts of the report which would be made available later in the meeting and other non-defamatory points which would be useful to members of the committee. The committee by 23 votes to 3 resolved that those parts of the Osmond Report containing damaging and potentially defamatory references to third parties should not be made available. The affidavit sworn on behalf of the Lancashire Police Committee amplified their reasons as follows: “(i) It is essentially a report into allegations made against the former Chief Constable which has led to disciplinary action being taken and concluded against him in accordance with disciplinary regulations following a hearing by an independent tribunal whose findings and recommendations the committee accepted and therefore have fully discharged their functions under the discipline regulations, (ii) In so far as there are

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matters in the report relating to the constabulary as a whole various reports have been called for and those parts of the report germane to such matters have been, or will be, given to the committee. (iii) Access is only being withheld to those parts of the report which contain matter potentially damaging to or defamatory of third parties and which relate to allegations which the committee decided did not reveal that the Chief Constable might have committed a disciplinary offence”. The committee had done all it could to take proper advice before reaching its decision. The opinion of leading counsel had been obtained; indeed they acted throughout on his advice. Counsel’s opinion on matters of qualified privilege has been criticised, but I cannot quarrel with the general tenor of his advice that republication of rumour and gossip is undesirable. Indeed if the defamatory statements are in fact irrelevant to Mr. Hook’s duties as a councillor, disclosure would not be privileged. If they were not reasonably necessary for the performance of his duties they would not be privileged (see per Lord Justice Lindley in Stuart v. Bell (1891) 2 Queen’s Bench at page 349 and Gatley, 7th edition, at paragraph 449- See also Adam v. Ward (1917) Appeal Cases 309 per Lord Atkinson at page 340).

Accordingly, in my judgment, the argument that the committee made a decision based on improper advice fails. Criticism is made of the form of the Resolution, and I will deal with this hereafter.

There was no dispute between the parties as to the law about disclosing documents in the possession of the council. In Rex v. Barnes Borough Council, ex parte Conlan (1938) 3 All England Reports 226 at page 230 Mr. Justice Humphreys, giving the judgment of the court, said that a councillor had a right

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to inspect all documents in possession of the council “so far as his access to the documents is reasonably necessary to enable the councilor properly to perform his duties as a member of the council. The common law right of a councillor to inspect documents in the possession of the council arises from his common law duty to keep himself informed of all matters necessary to enable him properly to discharge his duty as a councillor. There must be some limit to this duty. To hold that each councillor of such a body as, for instance, the London County Council, is charged with the duty of making himself familiar with every document in the possession of that body would be to impose an impossible burden upon individual councillors. The duties are therefore divided amongst various committees and sub-committees”. The final decision as to whether something is necessary or not for the members of the committee must in the last resort be that of the committee of the council. There can be no absolute line to be drawn and, in my judgment, where it is doubtful whether or not disclosure is reasonably necessary to enable a councillor who is a member of a committee properly to perform his duties, the committee may take into consideration possible ill-effects on innocent people of allowing documents to be inspected.

Furthermore, in so far as it is a matter of discretion, it is the discretion of the council which this court has to consider and it is not a question of this court exercising its own discretion. The test is, was the decision which the committee of the council made one which a reasonable council could make?

The constitution and functions of the Police Committee are laid down in the Police Act 1964. By section 2 the Police

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Committee consists of two-thirds councillors and one-third magistrates appointed by the magistrates for the county. Section 4 lays down the duty of the Police Authority to secure the maintenance of an adequate and efficient police force for the area “and to exercise for that purpose the powers conferred on a Police Authority by this Act”. Subsection (2) empowers the Police Authority to appoint the Chief Constable. Subsection (3) creates the power to provide and maintain buildings for the police force. Subsection (4) to provide and maintain vehicles, apparatus, clothing, etc. Then section 5(1) says: “The police force maintained for a police area under section 1 of this Act shall be under the direction and control of the Chief Constable appointed Under section 4(2)”. Section 6 contains, among other things, powers in the Police Authority to appoint the Deputy and Assistant Chief Constables of the force. The Chief Constable reports to the Police Committee formally once a year and informally at its meetings. The general division of responsibility is that the Chief Constable is responsible for the operation and discipline of the force whilst the Police Authority has overall authority as I have indicated. There is one particular division in that the discipline of the Chief Constable, the Deputy Chief Constable and any Assistant Chief Constable is the responsibility of the Police Authority while all officers below the rank of Assistant Chief Constable are the responsibility of the Chief Constable. It was of course because of the Police Committee’s responsibility for the Chief Constable that the Osmond Report was prepared and it was because of that report that the disciplinary proceedings were taken.

The Police Committee from the beginning were excluding from their minds those matters which could not be proved. At

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the meeting on the 27th January, 1977, at which the Osmond Report. was considered, the committee resolved that they did not wish to be informed of the names of those involved at that stage because names would necessarily be disclosed in the charges against the Chief Constable. They would be reminded in due course of the identity of persons named in disciplinary charges against the Chief Constable. The decision made on the 22nd February, 1978 was in line with the policy of that earlier decision.

Was it reasonably necessary to enable Mr. Hook to carry out his duties for him to have access to the matters not disclosed? Although the words of Mr. Justice Humphreys are not the words of a statute, they import two considerations, namely necessity and reasonableness. In one sense a councillor would be better informed if he knew all about every policeman in the force. On the other hand, he is not concerned with the day to day running of the force; that is for the Chief Constable. The Police Committee’s primary concern (apart from finance, establishment, buildings, equipment, etc.) are the Chief Constable, the Deputy Chief Constable and the Assistant Chief Constables and the reasonableness of making available potentially defamatory information based on rumour and gossip is a matter essentially and appropriately for the Police Committee.

Although the form of the resolution “That the advice of Leading Counsel be accepted and that those parts of Sir Douglas Osmond’s report which contain damaging and potentially defamatory references to third parties should not be made available” has been criticised by counsel, I do not think there is any real substance in such criticism. The opinion of leading counsel was expressed in very moderate terms, e. g. “I incline to the view”, “I feel it would be unwise”, and accordingly the

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committee had to make up its own mind. There may be passages in that advice about which opinions may differ. In my view, however, it cannot be denied that information based on rumour and gossip which it was not possible to prove and which may be wholly untrue should if possible not be repeated. It is certainly more than arguable that it is not necessary to know rumour and gossip the truth of which cannot be proved. Indeed if it had been disclosed and there was a defamatory passage that it was not reasonably necessary for members of the committee to know, there would probably be no privilege (Adams v. Ward and Stuart v. Bell supra).

It is accepted that Mr. Hook will not repeat anything which he learns if allowed to see the report. But it is not only Mr. Hook, it is all the new members of the committee and indeed the old members who have not seen the report for a considerable time and who, apart from their original sight of the report, made a point of keeping themselves ignorant of the names mentioned in the report. Mr. Hook is asking for the whole report to be available, but the committee have resolved that those parts containing “damaging and potentially defamatory references to third parties” should not be disclosed. There is other information not covered by this resolution which the clerk at the meeting said would be helpful, and it appears that Mr. Hook has not seen this. I do not understand why since it apparently is not covered by the resolution.

I have already indicated that in my opinion the committee did not act on improper advice. The question then remains whether or not it can be said that the conclusion to which the committee came is one at which no reasonable committee could properly arrive. I have come to the conclusion that the

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appellant has failed to show that no reasonable council committee could come to the conclusion at which this committee arrived and I would dismiss this appeal.

The question of granting an order for judicial review is a matter for the discretion of the court. Even if I had taken a different view from that which I have expressed above it would have been my opinion that this was not a case where a court in its discretion should grant judicial review of the proceedings of the council committee. To republish gossip and rumour either twelve months after (that being the date of Mr. Hook’s application) or three years after (that being the date of this hearing) they have been locked away is in the highest degree undesirable, particularly where action has been taken wherever the report related to facts and more particularly when this appeal is being heard after a new Chief Constable has been appointed.

LORD JUSTICE DUNN: Prima facie a councillor has a right to the production of documents which have come into existence as documents address to the council of which he was a member (R. v. Hampstead Borough Council, ex parte Woodward 97 Law Times Reports per Lord Reading C. J. at page 215 ), provided that he has a bona fide ground for wishing to see them (R. v. Southwold Corporation, ex parte Wrightson 97 Law Times Reports per Lord Alverstone C. J. at page 432). No question arises here as to the applicant’s bona fides, but at the date of the report and of its original submission to the Police Committee before the special meeting of the 27th January, 1977 when it was circulated in full to all the then members, he was neither a councillor nor a member of the Committee. So he is only entitled to such production of the report as will enable him

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properly to carry out his duties as a member of the Committee. (See R. v. Barnes Borough Council, ex parte Conlan (1938) 3 All England Reports 226). This case has stood for over 40 years. It has never been doubted. It was accepted by the Divisional Court and the Bar as an accurate statement of the law, and I agree with Lord Justice Waller that it sets out the case relevant to the circumstances in this case.

The minute of the meeting of the 22nd February, 1978 refers in terms to the advice of leading counsel, and the Committee resolved that his advice should be accepted. Leading counsel had in fact advised on three separate occasions in regard to the contents of the report, its disclosures, and the actions to be taken upon it. His views as to the disclosure may be summarised as follows. First, he advised that the report showed that Sir Douglas Osmond had conducted a wide ranging scrutiny of the conduct of the Chief Constable, and that some of the allegations recorded in the report were frankly expressed to be gossip, rumour, and hearsay. This is not to criticise the conduct of the investigation by Sir Douglas, who at that stage would be anxious to follow up all possible lines of inquiry whether or not they resulted in admissible evidence sufficient to support criminal or disciplinary charges, and I agree with Lord Justice Waller that leading counsel was right to warn the Committee of the danger of acting on gossip, rumour and hearsay. Secondly, counsel advised that certain of the allegations in the report were defamatory of third persons and drew attention to Conlan’s case and Wrightson’s case as supporting the proposition that a councillor’s right of access to documents was limited to those documents which were reasonably necessary to enable him properly to perform his duties as a member of the council. Finally,

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counsel advised, not without hesitation, that further disclosure of the defamatory material to the Committee, including the new members, would, as he put it, be dangerous; although he added a rider to the effect that he was not acquainted with the reasons why such disclosure could be said to be reasonably necessary to enable the applicant properly to discharge his duties. In the agenda for the meeting of the 22nd February the Clerk to the Committee as custos rotulorum noted in relation to the defamatory material: “No evidence has been forthcoming to show that production to an individual member of the Committee was necessary to enable him to perform his duties”. If counsel’s advice was wrong, then it could be said that the Committee, having expressly relied on it and given it as the only reason for their resolution, had taken into account a matter which they should not have taken into account, and that on general principles the court could interfere to override their decision. (See Associated Picture Houges Ltd. v. Wednesbury Corporation (1948) 1 King’s Bench 223).

Was counsel’s advice wrong? The communication of the report to the members of the Police Committee would be a privileged occasion. And I accept with respect that the passage referred to by the Master of the Rolls from the speech of Lord Atkinson in Adam v. Ward (1917) Appeal Cases at page 334 sets out accurately the law as to a privileged occasion giving rise to qualified privilege, and that that has been repeatedly approved in later cases. But at page 340 of Adam v. Ward Lord Atkinson said this: “A more difficult question, however, remains upon which the authorities cited give little, if any, assistance. It is this: What would be the effect of embodying separable foreign and irrelevant defamatory matter in a libel? Would it make the occasion of the publication of the libel no

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longer privileged to any extent, or would those portions of the libel which would have been within the protection of the privileged occasion, if they had stood alone and constituted the entire libel, still continue to be protected, the irrelevant matter not being privileged at all and furnishing possible evidence that the relevant portion was published with actual malice. In the absence of all guiding authority the latter would, in my opinion, be more consistent with justice and legal principle, and I think it is, in law, the true result”. And Lord Loreburn, in the same case, said at page 320: “The fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing”. So far as I am aware, neither of those statements of the law has ever been doubted since, and they are cited with approval in the current edition of Gatley on Libel and Slander at page 583.

There was undoubtedly foreign matter in this report, and although the chances of its publication to the Committee ever coming to light might have been remote I believe that counsel was right to advise caution. This was especially so in the circumstances, where not only had the full report itself but also the agenda of an important meeting at which the decision had been taken to dismiss the Chief Constable been leaked to the press. That had resulted in at least three libel actions against a local newspaper, in one of which the plaintiff, a police officer, recovered substantial damages.

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The Committee were aware of the leaks, and counsel had correctly directed them upon the law as to a councillor’s right of access to documents. They were in a better position than anyone else to know what their own duties as members of the Police Committee were and, in particular, what if any further information they required to enable them to deal with the incidental recommendations in the report, none of which it appears required direct action by the Committee themselves. And they voted by a large majority that those parts of the report which contained damaging find potentially defamatory references to third parties should not be made available.

In my view the court should be slow by the exercise of a prerogative power to interfere with a decision democratically arrived at in that way. The Committee might have dealt with the matter differently. But, speaking for myself, I cannot say that they were in error in accepting counsel’s advice and I too would dismiss the appeal.

(Order: Appeal dismissed by majority. No order for costs. Application for leave to appeal granted).

Links

[1] 1978 May 3 Hansard House of Lords OSMOND REPORT http://hansard.millbanksystems.com/lords/1978/may/03/osmond-report

[2] Lobster Magazine Our Friends in the North West: The Owen Oyston Affair http://www.lobster-magazine.co.uk/articles/lob34-03.htm

Bill Harrison was a grocer who became one of Lancashire’s most successful property developers. With managing director Norman Leech he developed an enormous caravan park on Marton Mere, a patch of marshland owned by Blackpool Council. The lease to his firm, granted without any rival bidding by Blackpool Council under its Tory chairman, Len Broughton, was criticised by both the Caravan Club of Great Britain and the Sunday Times. Harrison told the Sunday Times that after his daughter’s car had killed two women pedestrians in Kirkham, he telephoned Len Broughton ‘and asked him if he could tell me the name of the police chief that I should contact in order to have certain aspects of the case investigated rather deeper.’ This telephone call was cited later in the Osmond Report which led to the sacking of the Chief Constable of Lancashire, accused of improperly reducing the charges against Harrison’s daughter. Harrison blames Owen Oyston for a newspaper investigation of the affair. He told a reporter: ‘It is very possible that Owen Oyston as a principal advertiser with the Lancashire Evening Post had considerable influence on the paper’s coverage of my daughter’s case.’ Oyston says he was actually a friend of the sacked Chief Constable.

Harrison was friendly with Airey Neave, murdered by the INLA after organising Margaret Thatcher’s election as Tory leader. During Tory conferences at Blackpool, Margaret Thatcher landed by helicopter on the lawn of Greyfriars, Bill Harrison’s home at Preston, where she used to stay overnight. Other government ministers have stayed at Greyfriars, Lord Waddington, Mrs Thatcher’s former Chief Whip and Home Secretary, and the Derbyshire Tory MP Philip Oppenheim have also been involved in the affair.

[3] 2011 May 11 Lancashire Telegraph Downfall of Lancashire’s ‘untouchable’ police chief recalled  http://www.lancashiretelegraph.co.uk/news/9020203.display/

[4] 2014 Aug 18 New York Enquirer Police Corruption and Organised Crime http://nyenquirer.uk/police-organised-crime/

The investigation by Lancashire Police into Cyril Smith was plagued by political interference from the start. It was conducted by Lancashire Police Special Branch, not Lancashire Police CID. Smith was protected by the Liberal Party, the Chief Constable of Lancashire, William Palfrey, and MI5. Full story here. Eventually, Officers from MI5 seized the files relating to the Lancashire Police investigation.

Interestingly, the next Chief Constable of Lancashire Stanley Parr CBE QPM was dismissed for similarly abusing his position to improperly influence cases. A key allegation was that Parr prevented the prosecution of a County Councillor who was also a Police Committee member and local businessman over a driving summons.

When a journalist got close to Smith, he was threatened with arrest by the Metropolitan Police on the orders of MI5. This policy of using Police powers to suppress evidence of abuse by high profile figures still continues to this day. When the North Yorkshire Enquirer team started to probe Savile and Jaconelli’s links with North Yorkshire Police and the relationship between Councillor Jane Kenyon-Miller and North Yorkshire Police, one of our journalists was also threatened with arrest.

The Labour MP Simon Danczuk has alleged that Smith was protected because he was a member of a powerful paedophile network based in Westminster. Certainly the orders by MI5 to (1) seize the files, (2) serve a D-Notice on a journalist to prevent him from revealing serious crime by a senior politician, (3) threaten to arrest the journalist,  and then (4) the decision to continually suppress the evidence for thirty years, could only have come from the top.

[5] 2015 Jan 8 Blackpool Crime BLACKPOOL: OWEN OYSTON RAPIST OR VICTIM? https://blackpoolcrime.wordpress.com/2015/01/08/blackpool-owen-oyston-rapist-or-victim/

[6] 2015 Mar 20 Daily Mail Revealed: Ex-chief constable who says Cyril Smith cover-up went right to the top http://www.dailymail.co.uk/news/article-3004934/Ex-chief-constable-says-Cyril-Smith-cover-went-right-top.html

[7] You Tube Channel 4 Police: Cyril Smith guilty of sexual abusehttps://www.youtube.com/watch?v=iq-PGXWcba8

 

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
This entry was posted in cathy fox blog, Court, North West, Police and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Richard Hook v The Clerk of Lancashire Police Committee 19 Mar 1980 Supreme Court (Police)

  1. Reblogged this on Buried News and commented:
    Cyril Smith cover up went up to the top? Of course it did, and a lot of people knew about it. The Young Liberals tried to stop Smith becoming a MP. There was even a report in a paper many years ago on how Smith dealt with delinquent boys , although no trace of it now. Question is of course was itthe police closing it down or M15 orpure political pressure.

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